Exhibit 99.2
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GMAC MORTGAGE CORPORATION,
THE SERVICER
MAIA MORTGAGE FINANCE STATUTORY TRUST,
THE SELLER
XXXXX FARGO BANK, N.A.,
THE MASTER SERVICER AND THE SECURITIES ADMINISTRATOR
INTERIM SERVICING AGREEMENT
DATED AS OF SEPTEMBER 1, 2006
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TABLE OF CONTENTS
Page
ARTICLE I Definitions............................................................................................1
Section 1.01 Definitions..........................................................................1
Section 1.02 Calculations Respecting Accrued Interest............................................10
ARTICLE II [RESERVED]...........................................................................................11
ARTICLE III Administration and Servicing of Mortgage Loans......................................................12
Section 3.01 Engagement as Servicer..............................................................12
Section 3.02 Agreements Between Servicer and Subservicer.........................................12
Section 3.03 Collection of Certain Mortgage Loan Payments and Liquidation of Mortgage
Loans...............................................................................13
Section 3.04 [Reserved]..........................................................................13
Section 3.05 Escrow Accounts.....................................................................13
Section 3.06 Custodial Account...................................................................14
Section 3.07 Permitted Withdrawals From the Custodial Account....................................14
Section 3.08 Permitted Instruments...............................................................15
Section 3.09 Primary Insurance Policies..........................................................16
Section 3.10 Maintenance of Hazard Insurance and Errors and Omissions and Fidelity
Coverage............................................................................16
Section 3.11 Enforcement of Due-On-Sale Clauses..................................................17
Section 3.12 Realization Upon Defaulted Mortgage Loans...........................................19
Section 3.13 Release of Mortgage Files...........................................................19
Section 3.14 [Reserved]..........................................................................20
Section 3.15 REO Property........................................................................20
Section 3.16 Compensating Interest...............................................................21
Section 3.17 Filing Requirements.................................................................21
Section 3.18 Securitization Servicing............................................................21
Section 3.19 Transfer of Servicing to Central Mortgage Company...................................23
ARTICLE IV Payments to the Trust Fund...........................................................................25
Section 4.01 Distributions.......................................................................25
Section 4.02 Statements to the Master Servicer...................................................25
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Section 4.03 Monthly Advances by the Servicer....................................................25
Section 4.04 Reports and Returns to be Filed by the Servicer.....................................25
Section 4.05 Format of Reports and Statements....................................................26
ARTICLE V The Servicer..........................................................................................26
Section 5.01 Indemnification.....................................................................26
Section 5.02 Liability of the Servicer and Others................................................27
Section 5.03 Merger or Consolidation of the Servicer.............................................27
Section 5.04 Servicer Resignation; Assignment of Agreement.......................................27
Section 5.05 Compliance with REMIC Provisions....................................................28
Section 5.06 Right to Examine Servicer Records...................................................28
ARTICLE VI Default..............................................................................................28
Section 6.01 Events of Default of the Servicer...................................................28
Section 6.02 Waiver of Defaults..................................................................30
ARTICLE VII Termination.........................................................................................30
Section 7.01 Termination.........................................................................30
ARTICLE VIII Miscellaneous Provisions...........................................................................30
Section 8.01 Successor to the Servicer...........................................................30
Section 8.02 Entire Agreement; Amendment.........................................................31
Section 8.03 GOVERNING LAW.......................................................................31
Section 8.04 Notices.............................................................................31
Section 8.05 Severability of Provisions..........................................................32
Section 8.06 No Partnership......................................................................32
Section 8.07 Exhibits............................................................................32
Section 8.08 Counterparts; Successors and Assigns................................................32
Section 8.09 Limited Role of the Trustee.........................................................33
ARTICLE IX COMPLIANCE WITH REGULATION AB........................................................................33
Section 9.01 Intent of the Parties; Reasonableness...............................................33
Section 9.02 Additional Representations and Warranties of the Servicer...........................34
Section 9.03 Information to Be Provided by the Servicer..........................................34
Section 9.04 Servicer Compliance Statement.......................................................38
Section 9.05 Report on Assessment of Compliance and Attestation..................................39
Section 9.06 Use of Subservicers and Subcontractors..............................................40
Section 9.07 Indemnification; Remedies...........................................................41
Section 9.08 Third-Party Beneficiary.............................................................43
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Exhibits
Exhibit A [Reserved]
Exhibit B [Reserved]
Exhibit C [Reserved]
Exhibit D [Reserved]
Exhibit E Form of Periodic Reports
Exhibit F Form of Certification
Exhibit G Form of Request for Release
Exhibit H [Reserved]
Exhibit I Form of Annual Certification
Exhibit J Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit K Special Foreclosure Rights Section
Schedule 1 Mortgage Loan Schedule
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This is an INTERIM SERVICING AGREEMENT, dated and effective as of
September 1, 2006, by and among GMAC MORTGAGE CORPORATION, as servicer (the
"SERVICER"), MAIA MORTGAGE FINANCE STATUTORY TRUST, as the Seller (the "SELLER")
and XXXXX FARGO BANK, N.A., as Master Servicer (in such capacity, the "MASTER
SERVICER") and securities administrator (the "SECURITIES ADMINISTRATOR"), and is
acknowledged by HSBC BANK USA, NATIONAL ASSOCIATION, as trustee (the "TRUSTEE")
together with all amendments hereof and supplements hereto (the "AGREEMENT").
RECITALS
WHEREAS, the Servicer, prior to the Closing Date, serviced the Mortgage
Loans (as defined herein) pursuant to arrangements with Mortgage IT, Inc.;
WHEREAS, the Seller has conveyed the Mortgage Loans (as defined herein)
to the Xxxxx Asset Securitization, Inc. (the "DEPOSITOR"), and the Depositor in
turn has conveyed the Mortgage Loans to the Trustee, all pursuant to a pooling
agreement, dated as of September 1, 2006 (the "POOLING AGREEMENT"), among the
Seller, the Depositor, the Master Servicer, the Securities Administrator and the
Trustee;
WHEREAS, until Transfer Date, the Servicer has agreed to service the
Mortgage Loans , subject to the rights of the Master Servicer to terminate the
rights and obligations of the Servicer hereunder as set forth herein and to the
other conditions set forth herein; and
WHEREAS, the Master Servicer and any successor Master Servicer shall be
obligated, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee and Luminent Mortgage Trust 0000-0 (xxx "XXXXX XXXX"),
and shall have the right to terminate the rights and obligations of the Servicer
upon the occurrence and continuance of an Event of Default under this Agreement.
In consideration of the premises and the mutual agreements hereinafter
set forth, and intending to be legally bound, the Seller, the Master Servicer,
the Securities Administrator and the Servicer agree hereby as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article.
Accepted Servicing Practices: With respect to any Mortgage Loan, all
applicable federal, state and local laws and regulations and those mortgage
servicing practices and procedures (including collection practices and
procedures) of prudent mortgage banking institutions which service mortgage
loans of the same type as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located and which, except as otherwise
specifically provided herein, are no lower than the standards employed by the
Servicer in servicing similar mortgage loans for its own account and the
standards established by Xxxxxx Mae under the Xxxxxx Xxx Guide with respect to
similar mortgage loans that are purchased by and serviced on behalf of Xxxxxx
Mae.
Accrued Interest: With respect to each Remittance Date, one month's
interest accrued at the then applicable Pass-Through Rate on the aggregate
Principal Balance of the Mortgage Loans as of the close of business on the
immediately preceding Remittance Date (or in the case of the first Remittance
Date, the Cut-off Date). Accrued Interest will be calculated on the basis of a
360-day year consisting of twelve 30-day months. In each case Accrued Interest
will be adjusted in accordance with Section 1.02.
Acquisition Date: As defined in Section 3.15.
Adjustment Date: As to each Mortgage Loan, each date set forth in the
related Mortgage Note on which an adjustment to the interest rate on such
Mortgage Loan becomes effective.
Agency: Xxxxxx Xxx and/or Xxxxxxx Mac.
Appraised Value: With respect to any Mortgaged Property, generally, the
lesser of (a) the appraised value of such Mortgaged Property based on an
appraisal made at the time of the origination or modification of the related
Mortgage Loan by an appraiser who met the minimum requirements of Xxxxxx Xxx and
Xxxxxxx Mac and (b) the sales price of the Mortgaged Property at such time of
origination; except in the case of a Mortgaged Property securing a refinanced or
modified Mortgage Loan as to which it is either the appraised value determined
above or the appraised value determined in an appraisal at the time of
refinancing or modification, as the case may be by an appraiser who met the
minimum requirements of Xxxxxx Mae and Xxxxxxx Mac .
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the Commonwealth of Pennsylvania, the State
of New York or the State of Minnesota (or such other state or states in which
the Custodial Account is at the time located) are required or authorized by law
or executive order to be closed.
Cash Receipts: As defined in Section 3.15.
Closing Date: September 15, 2006.
Code: The Internal Revenue Code of 1986.
Compensating Interest: With respect to any Remittance Date, an amount
equal to Prepayment Interest Shortfalls resulting from Full Prepayments during
the related Prepayment Period and Partial Prepayments during the prior calendar
month, but not more than the lesser of (a) one-twelfth of 0.375% of the
Principal Balance of the Mortgage Loans immediately preceding such Remittance
Date and (b) $15.00 for each Mortgage Loan experiencing unscheduled principal
payments in respect of the Remittance Date.
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Consumer Information: Information including but not limited to all
personal information about the Mortgagors that is supplied to any party to this
Agreement on behalf of the Mortgagors.
Custodial Account: The custodial account created and maintained
pursuant to Section 3.06.
Custodian: Xxxxx Fargo Bank, N.A.
Cut-off Date: September 1, 2006.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Determination Date: The earlier of (a) the Business Day prior to the
Transfer Date, and (b) with respect to any Remittance Date, the 16th day (or if
such 16th day is not a Business Day, the Business Day immediately succeeding
such 16th day) of the month in which such Remittance Date occurs.
Due Date: With respect to any Remittance Date, the first day of the
month in which such Remittance Date occurs.
Due Period: With respect to any Remittance Date, the period commencing
on the second day of the month preceding the month of such Remittance Date and
ending on the related Due Date.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 6.01.
Xxxxxx Xxx: Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fitch: Fitch, Inc. or its successor in interest.
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Xxxxxxx Mac: Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Full Prepayment: Any payment of the entire principal balance of a
Mortgage Loan which is received in advance of its scheduled Due Date and is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth
in the related Mortgage Note and indicated on the Mortgage Loan Schedule as the
"NOTE MARGIN", which percentage is added to the Index on each Adjustment Date to
determine (subject to rounding in accordance with the related Mortgage Note, the
applicable Periodic Cap, Maximum Interest Rate and Minimum Interest Rate) the
interest rate to be borne by such Mortgage Loan until the next Adjustment Date
thereof.
Index: With respect to each adjustable rate Mortgage Loan, the index,
as specified in the related Mortgage Note, used to determine the Mortgage
Interest Rate on each Adjustment Date.
Insurance Proceeds: Proceeds paid in respect of any Mortgage Loan
pursuant to any insurance policy covering such Mortgage Loan to the extent such
proceeds are payable to the mortgagee under the Mortgage, any Subservicer or the
Servicer and are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures set
forth in Accepted Servicing Practices.
Insured Expenses: Expenses covered by any mortgage insurance policy,
any replacement insurance policy or policies or any other insurance policy.
Lender-Paid Mortgage Insurance Policy: A policy of primary mortgage
guaranty insurance pursuant to which the related premium is to be paid by the
servicer of the related Mortgage Loan from payments of interest made by the
Mortgagor in an amount as is set forth in the related Mortgage Loan Schedule.
Liquidated Mortgage Loan: A Mortgage Loan as to which the Servicer has
collected all Liquidation Proceeds and other payments or recoveries which the
Servicer deems to be finally recoverable.
Liquidation Expenses: Expenses which are incurred by the Servicer in
connection with the liquidation of any defaulted Mortgage Loan (to the extent
such amount is reimbursable under the terms of this Agreement or Accepted
Servicing Practices) and not recovered by the Servicer under any insurance
policy for reasons other than the Servicer's failure to comply with Section 3.09
or 3.10.
Liquidation Proceeds: Cash (including Insurance Proceeds and
condemnation proceeds) received in connection with the liquidation of defaulted
Mortgage Loans, whether through trustee's sale, condemnation, foreclosure sale
or otherwise, net of Liquidation Expenses and Insured Expenses.
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Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Mortgage Loan at the date of determination and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Maximum Interest Rate: As to any Mortgage Loan, the maximum interest
rate that may be borne by such Mortgage Loan as set forth in the related
Mortgage Note and indicated in the related Mortgage Loan Schedule as the "NOTE
CEILING," which rate may be applicable to such Mortgage Loan at any time during
the life of such Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
Minimum Interest Rate: As to any Mortgage Loan, the greater of (i) the
Gross Margin and (ii) the rate indicated in the related Mortgage Loan Schedule
as the "NOTE FLOOR," which rate may be applicable to such Mortgage Loan at any
time during the life of such Mortgage Loan.
Minimum Monthly Payment: With respect to a Pay Option ARM Mortgage
Loan, the minimum Monthly Payment calculated in accordance with the terms of the
related Mortgage Note.
Monthly Advance: The aggregate of the advances made by the Servicer
with respect to any Remittance Date pursuant to Section 4.03, the amount of any
such Monthly Advance being equal to the aggregate of the principal portion of
such Monthly Payments on the Mortgage Loans which were due on the related Due
Date but extended pursuant to Section 3.03 or delinquent (in whole or in part)
as of the close of business on the Business Day next preceding the related
Remittance Date, plus the interest portion of such Monthly Payments adjusted to
the related Mortgage Loan Remittance Rates, and less the amount of any advances
which the Servicer has determined would constitute Nonrecoverable Monthly
Advances, if made.
Monthly Payment: With respect to any Mortgage Loan and any month, the
scheduled monthly payment of principal and interest on such Mortgage Loan which
is payable by a Mortgagor in such month under the related Mortgage Note.
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a fee simple interest or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents pertaining to a particular
Mortgage Loan which shall be delivered to the Custodian, as the duly appointed
agent of the Trustee, or as otherwise agreed by the parties to this Agreement
and the Custodian, if any, in writing, and any additional documents required to
be added to the Mortgage File pursuant to this Agreement.
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Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan. The Mortgage Interest Rate for each Mortgage Loan as of the
applicable Cut-off Date will be the rate indicated as the "CURR RATE" on the
Mortgage Loan Schedule and, with respect to any adjustable rate Mortgage Loan,
will be adjusted on each Adjustment Date to a rate equal to the sum of the Index
applicable to such Adjustment Date and the Gross Margin, rounded to the nearest
multiple of 0.125%, subject to the application of the applicable Periodic Cap,
Maximum Interest Rate and Minimum Interest Rate.
Mortgage Loan: An individual mortgage loan which is the subject of this
Agreement and identified on the Mortgage Loan Schedule.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan and
Due Date occurring prior to the first Adjustment Date for such Mortgage Loan
occurring after the applicable Cut-off Date, the rate designated as the "NET MTG
RT" for such Mortgage Loan on the related Mortgage Loan Schedule. With respect
to each Mortgage Loan and each Due Date occurring on or after each Adjustment
Date, a rate equal to the then-applicable Mortgage Interest Rate minus the sum
of the then-applicable Servicing Fee Rate (determined as an annualized
percentage of Principal Balance of the Mortgage Loan as of the prior Due Date).
Mortgage Loan Schedule: The schedule of Mortgage Loans attached hereto.
Mortgage Note: The originally executed note evidencing the indebtedness
of a Mortgagor under a Mortgage Loan and any modification thereto.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization: With respect to a Pay Option ARM Mortgage Loan,
any portion of interest accrued at the Mortgage Interest Rate in any month which
exceeds the Monthly Payment on the related Mortgage Loan for such month and
which, pursuant to the terms of the Mortgage Note, is added to the principal
balance of the Mortgage Loan.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made or
proposed to be made by the Servicer which, in the judgment of the Servicer, and
as certified to the Master Servicer is not or, in the case of a proposed Monthly
Advance, would not be ultimately recoverable by the Servicer from Liquidation
Proceeds or otherwise.
Opinion of Counsel: A written opinion of counsel, who may, unless
otherwise provided herein, be counsel for the Servicer.
Partial Prepayment: Any payment of principal on a Mortgage Loan, other
than a Full Prepayment, which is received in advance of its scheduled Due Date
and is not accompanied by an amount of interest representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
Pass-Through Rate: As to any Remittance Date, a rate equal to the
weighted average, expressed as a percentage, of the Mortgage Loan Remittance
Rates of all Mortgage Loans as of the close of business on the Due Date in the
month preceding the month in which such Remittance Date occurs, weighted on the
basis of the respective Principal Balances of such Mortgage Loans, which
Principal Balances shall be the Principal Balances of such Mortgage Loans
immediately prior to such Remittance Date.
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Pay Option ARM Mortgage Loan: Any Mortgage Loan that lets Mortgagors
choose one of various different payments each month which may include, but not
be limited to, a Minimum Monthly Payment, an interest-only payment, full
principal and interest amortized over forty (40) years, full principal and
interest amortized over thirty (30) years, or full principal and interest
amortized over fifteen (15) years.
Periodic Cap: With respect to each Mortgage Loan, the maximum increase
or decrease in the Mortgage Interest Rate on any Adjustment Date, which shall be
an increase or decrease of not more than 2.00% per annum.
Permitted Instrument: As defined in Section 3.08.
Person: Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment Interest Shortfall: As to any Remittance Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Full Prepayment during the portion of the related
Prepayment Period that falls during the prior calendar month, an amount equal to
the excess of one month's interest at the Mortgage Loan Remittance Rate on the
Principal Balance of such Mortgage Loan over the amount of interest (adjusted to
the Mortgage Loan Remittance Rate) paid by the Mortgagor for such month to the
date of such Full Prepayment or (b) a Partial Prepayment during the prior
calendar month, an amount equal to one month's interest at the Mortgage Loan
Remittance Rate on the amount of such Partial Prepayment.
Prepayment Penalty: Any prepayment charge or penalty interest required
to be paid by a Mortgagor in connection with a prepayment of the related
Mortgage Loan, as provided in the related Mortgage Note or Mortgage, to which
the Trust Fund is entitled, and as specified on the related Mortgage Loan
Schedule.
Prepayment Period: As to any Remittance Date and a Full Prepayment, the
prior calendar month.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy thereof.
Principal Balance: As to each Mortgage Loan, as of the time of any
determination, (i) the principal balance remaining to be paid by the Mortgagor
at the close of business on the Cut-off Date, after deduction of all payments
due on or before the Cut-off Date whether or not paid, minus (ii) all amounts
distributed to the Master Servicer with respect to such Mortgage Loan and
reported to the Master Servicer as allocable to principal, including the
principal component of any Monthly Advances and any losses incurred with respect
to such Mortgage Loan, plus (iii) without duplication of amounts described in
clause (i) above, the cumulative amount of any Negative Amortization.
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Principal Remittance Amount: With respect to any Remittance Date, the
sum of (a) the principal component of any Monthly Advance for such Remittance
Date; (b) any amount required to be deposited in the Custodial Account pursuant
to Section 3.10(a); (c) any amount that the Servicer is not permitted to
withdraw from the Custodial Account pursuant to Section 3.16; and (d) the amount
on deposit in the Custodial Account as of the close of business on the
Determination Date immediately preceding such Remittance Date which is allocable
to payments on account of principal of the Mortgage Loans, which amount shall
not include (i) Partial Prepayments and the principal portion of any Liquidation
Proceeds, Insurance Proceeds or proceeds of the purchase of any Mortgage Loan
received in the month in which such Remittance Date occurs (other than such
Partial Prepayments, Liquidation Proceeds, Insurance Proceeds or proceeds of the
purchase of any Mortgage Loan that the Servicer has deemed to have been received
in the preceding month) and Full Prepayments made after the related Prepayment
Period, (ii) payments which represent receipt of scheduled payments of principal
due on a date or dates subsequent to the related Due Date and (iii) late
payments of principal which have been the subject of a previous Monthly Advance
and which are eligible for withdrawal pursuant to clauses (ii) or (vii) of
Section 3.07.
Rating Agencies: Fitch, Moody's and S&P.
Record Date: With respect to each Remittance Date, the later of (a) the
Closing Date, and (b) the close of business on the last Business Day of the
month next preceding the month in which the related Remittance Date occurs.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Amount: With respect to any Remittance Date, an amount equal
to, subject to Section 1.02, (i) the Principal Remittance Amount (if any) for
such Remittance Date, plus (ii) the Accrued Interest for such Remittance Date,
minus (iii) any amounts payable to the Servicer pursuant to Section 3.07 that
are not taken into account in the adjustment of Accrued Interest pursuant to
Section 1.02, plus (iv) the amount of any Compensating Interest with respect to
that Remittance Date, plus (v) any Prepayment Penalties collected during the
related Prepayment Period.
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Remittance Date: No later than 1:00 p.m. Eastern Time on the 18th day
of any month, beginning in the month following the month in which the Cut-off
Date occurs, or if such 18th day is not a Business Day, the first Business Day
immediately following.
REO Acquisition: The acquisition by the Servicer on behalf of the Trust
Fund of any REO Property pursuant to Section 3.12.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trust Fund through foreclosure or deed in lieu of foreclosure.
Request for Release: A request for release, the form of which is
attached as Exhibit G hereto, or an electronic request in a form acceptable to
the Custodian.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale
or other transfer of some or all of the Mortgage Loans directly or indirectly to
an issuing entity in connection with an issuance of publicly offered or
privately placed, rated or unrated mortgage-backed securities or (2) an issuance
of publicly offered or privately placed, rated or unrated securities, the
payments on which are determined primarily by reference to one or more
portfolios of residential mortgage loans consisting, in whole or in part, of
some or all of the Mortgage Loans.
Seller: As to any Mortgage Loan, a Person that executed a Seller's
Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans in such other form as has been approved by the Servicer.
Servicer: GMAC Mortgage Corporation, a Pennsylvania corporation, or its
successor in interest, or any successor as herein provided.
Servicing Fee: As to each Mortgage Loan and Remittance Date, a fee
equal to 0.375% per annum multiplied by the principal balance of the Mortgage
Loans as of the first day of the related Due Period. Of such amount, the
Servicer shall be entitled to retain a fee of $15.00 payable monthly to the
Servicer out of the interest portion of the Monthly Payment received on each
Mortgage Loan.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Subservicer: Any Person, including any successor, with whom the
Servicer has entered into a subservicing agreement pursuant to Accepted
Servicing Practices.
Subservicing Agreement: The written contract between the Servicer and a
Subservicer.
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Successor Servicer: Any successor Servicer appointed pursuant to
Section 8.01.
Transfer Date: October 31, 2006.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
Section 1.02 Calculations Respecting Accrued Interest.
(a) The Accrued Interest on any Remittance Date shall be reduced by the
amount of any Prepayment Interest Shortfalls with respect to that Remittance
Date (to the extent not offset by the Servicer with a payment of Compensating
Interest).
(b) In the event that the Liquidation Proceeds with respect to any
Mortgage Loan (net of amounts payable or reimbursable therefrom pursuant to
Sections 3.07(iii) and 3.07(iv)) are less than the Principal Balance of such
Mortgage Loan, together with one month's interest thereon at the applicable
Mortgage Loan Remittance Rate, the Accrued Interest on the Remittance Date in
the next succeeding month shall be reduced by the amount of such insufficiency.
In the event that such Liquidation Proceeds exceed the sum of the Principal
Balance of such Mortgage Loan plus one month's interest thereon at the
applicable Mortgage Interest Rate, such excess shall be payable to the Trust
Fund.
(c) In the event that any amount or amounts shall be withdrawn from
amounts attributable to the Mortgage Loans on deposit in the Custodial Account
pursuant to clauses (ii), (iii) (other than for servicing compensation), (iv),
(v), (vi), (vii), (viii) or (ix) of Section 3.07 and the related withdrawal or
withdrawals shall not be reflected in any adjustment required pursuant to
subsections (a) and (b) above, the Accrued Interest on the immediately
succeeding Remittance Date shall be reduced by the total of such amounts so
withdrawn to the extent such amounts would result in a shortfall of Accrued
Interest.
(d) In the event that as of the end of any Due Period, for any reason
(including, without limitation, acquisition of title to the underlying Mortgaged
Property through foreclosure or acceptance of a deed in lieu of foreclosure,
application of the Servicemembers Civil Relief Act or similar legislation or
regulations as in effect from time to time, or a Debt Service Reduction or a
Deficient Valuation), less than the full amount of the interest portion of the
Monthly Payment at the Mortgage Loan Remittance Rate due on the Due Date in such
Due Period on any Mortgage Loan is deposited in the Custodial Account and no
Monthly Advance is made or required to be made in respect thereof, the Accrued
Interest on the immediately succeeding Remittance Date shall be reduced by the
amount of such insufficiency.
(e) In the event that on or in the month of any Due Date (after
adjustment for the Servicing Fee) more than one month's interest at the
applicable Mortgage Loan Remittance Rate on the Principal Balance of any
Mortgage Loan is deposited in the Custodial Account as a result of late
recoveries of interest in respect of which no Monthly Advance was made in
respect of such amount, the Accrued Interest on the immediately succeeding
Remittance Date shall be increased by the amount of such excess.
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(f) All references to the Principal Balance of any Mortgage Loan in
this Section 1.02 are to the Principal Balance of such Mortgage Loan as of the
close of business on the Remittance Date immediately preceding the Remittance
Date in respect of which the Accrued Interest thereon is being adjusted pursuant
to the applicable subsection of this Section 1.02 or, in the case of the first
Remittance Date, as of the Cut-off Date.
ARTICLE II
[RESERVED]
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Engagement as Servicer.
From and after the Closing Date, the Servicer shall act as servicer,
and in such capacity shall service and administer the Mortgage Loans in
accordance with this Agreement and Accepted Servicing Practices, and in
connection therewith shall follow such procedures as it would employ in its good
faith business judgment which are normal and usual in its general mortgage
servicing activities for mortgage loans similar to the Mortgage Loans, and as if
the Mortgage Loans were owned by the Servicer and that are in accordance with
accepted mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as the Mortgage Loans. The
Servicer shall have full power and authority to the extent provided herein,
acting alone and/or through a Subservicer as provided in Section 3.02, to do or
cause to be done any and all things which it may deem necessary or desirable in
connection with such servicing and administration. The Servicer will perform its
duties and obligations as servicer hereunder in accordance with all applicable
laws in all material respects. The Trustee shall furnish the Servicer with any
powers of attorney and other documents necessary or appropriate to enable the
Servicer to service and administer the Mortgage Loans.
Section 3.02 Agreements Between Servicer and Subservicer.
The Servicer may enter into one or more Subservicing Agreements with
one or more Subservicers for the servicing and administration of the Mortgage
Loans. Each Subservicer shall be approved by the Servicer as a servicer in
accordance with the terms and conditions of Accepted Servicing Practices and
shall be entitled to receive and retain its compensation to the extent of the
servicing fee in respect of the related Mortgage Loans. References in this
Agreement to actions taken or to be taken by the Servicer in servicing the
Mortgage Loans include actions taken or to be taken by a Subservicer on behalf
of the Servicer. Each Subservicing Agreement will be upon such terms and
conditions as are required or permitted by Accepted Servicing Practices and are
not inconsistent with this Agreement. Any Subservicing Agreement shall be deemed
to be between the Subservicer and the Servicer alone and the Trust Fund shall
not be deemed a party thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to the Subservicer in its capacity as such
except as hereinafter set forth in this Section 3.02.
The Servicer further is authorized and empowered by the Trust Fund, in
its own name or in the name of the Subservicer, when the Servicer believes it
appropriate in its best judgment to register any Mortgage Loan on the MERS(R)
System, or cause the removal from the registration of any Mortgage Loan on the
MERS(R) System, to execute and deliver, on behalf of the Trust Fund any and all
instruments of assignment and other comparable instruments with respect to such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Trust Fund and its successors and assigns. The cost of any such
registration, removal, assignment or re-recording shall be paid by the Trust
Fund.
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The Servicer shall be entitled to terminate any Subservicing Agreement
that may exist and the rights and obligations of any Subservicer pursuant to any
Subservicing Agreement in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Servicer or the Subservicer, all servicing obligations of such
Subservicer shall be assumed simultaneously by the Servicer, and the Servicer
shall either act as servicer of the related Mortgage Loan or enter into a
Subservicing Agreement with a successor Subservicer which will be bound by the
terms of the related Subservicing Agreement.
The Servicer shall remain obligated and primarily liable for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability by
virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans.
In the event the Servicer shall for any reason no longer be the
servicer of the Mortgage Loans hereunder, the Successor Servicer appointed
pursuant to Section 8.01, if any, or the Master Servicer, as the case may be,
shall thereupon assume all of the rights and obligations of the Servicer under
each Subservicing Agreement that may have been entered into, unless the
Subservicer or Master Servicer is then permitted and elects to terminate any
Subservicing Agreement in accordance with its terms.
Section 3.03 Collection of Certain Mortgage Loan Payments and
Liquidation of Mortgage Loans.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans. Consistent with
the foregoing, the Servicer may in its discretion and only upon determining that
the coverage of such Mortgage Loan by the related mortgage insurance policy if
any, will not be affected, extend the Due Dates for the Monthly Payments due on
a Mortgage Note in accordance with Accepted Servicing Practices. The Servicer
may (or shall, in the case of clauses (ii) or (iii) below) waive (or permit a
Subservicer to waive) a Prepayment Penalty only under the following
circumstances: (i) such waiver relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Servicer, maximize recovery
of total proceeds taking into account the value of such Prepayment Penalty and
the related Mortgage Loan, (ii) such waiver is required under state or federal
law or (iii) the mortgage debt has been accelerated as a result of the
Mortgagor's default in making its Monthly Payments. The Servicer shall not waive
(and shall not permit any Subservicer to waive) any Prepayment Penalty unless it
is waived in accordance with the immediately preceding sentence.
Section 3.04 [Reserved].
Section 3.05 Escrow Accounts. The Servicer shall establish or cause
each Subservicer pursuant to the related Subservicing Agreement to establish and
maintain one or more escrow accounts and deposit and retain therein all
collections from the Mortgagors for the payment of taxes, assessments, hazard
insurance premiums, mortgage insurance policy premiums, if applicable, and
comparable items for the account of the Mortgagors.
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Section 3.06 Custodial Account.
The Servicer shall establish and maintain one or more Custodial
Accounts, which may be interest bearing accounts. Except as otherwise set forth
below, the following payments and collections shall be deposited therein (other
than in respect of principal and interest on the Mortgage Loans due on or before
the Cut-off Date): (i) all payments on account of principal on the Mortgage
Loans; (ii) all payments on account of interest on the Mortgage Loans, net of
the Servicing Fee, including Compensating Interest; (iii) all Insurance Proceeds
and Liquidation Proceeds; (iv) any Monthly Advances; (v) any amounts required to
be deposited pursuant to Section 3.16 and the first paragraph of Section 3.08;
and (vi) any Prepayment Penalties.
With respect to Liquidation Proceeds and Insurance Proceeds, the
Servicer may elect to treat such amounts as included in the Principal Remittance
Amount for the Remittance Date in the month of receipt, but is not obligated to
do so. If the Servicer so elects, such amounts will be deemed to have been
received on the last day of the month prior to the receipt thereof.
Section 3.07 Permitted Withdrawals From the Custodial Account.
The Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account for the following purposes:
(i) to make payments to the Master Servicer in the amounts and
in the manner provided for in Section 4.01;
(ii) to reimburse itself for Monthly Advances, the Servicer's
right to reimburse itself pursuant to this subclause (ii) being limited
to amounts received on the related Mortgage Loan which represent late
payments of principal and/or interest respecting which any such advance
was made;
(iii) to reimburse itself as to any Liquidated Mortgage Loan
from related Liquidation Proceeds for related Monthly Advances, Insured
Expenses and Liquidation Expenses, and to reimburse itself for any
unpaid servicing compensation on such Liquidated Mortgage Loan;
(iv) to reimburse itself as to any Mortgage Loan which became
an REO Property, from related Liquidation Proceeds for related Insured
Expenses and Liquidation Expenses;
(v) (a) to pay to itself as servicing compensation any
interest earned on or investment income with respect to funds in the
Custodial Account to the extent interest earnings are in excess of the
amount of Compensating Interest owed and (b) to pay to itself as to
each Mortgage Loan the Servicing Fee (from which fee the Subservicer
may be compensated);
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(vi) to reimburse itself for any Nonrecoverable Monthly
Advance or to reimburse itself for any Liquidation Expenses not
previously recovered pursuant to subclauses (iii) and (iv) above;
(vii) to reimburse itself for expenses incurred by and
reimbursable to it pursuant to Section 5.01;
(viii) to reimburse itself for any other expenses incurred and
reimbursable to it pursuant to Section 3.12 or otherwise; and
(ix) to clear the Custodial Account of all amounts on deposit
therein attributable to the Mortgage Loans upon the termination of this
Agreement.
Section 3.08 Permitted Instruments.
The depository institution at which the Custodial Account has been
established may at the direction of the Servicer, invest the funds in the
Custodial Account in Permitted Instruments, which shall mature not later than
the Remittance Date next following the date of such investment. Subject to
Section 3.16, all income and gain realized from any such investment shall be for
the benefit of the Servicer and shall be subject to its withdrawal or order from
time to time. The amount of any losses incurred in respect of any such
investments shall be deposited in the Custodial Account by the Servicer out of
its own funds immediately as such losses are realized. As used herein,
"PERMITTED INSTRUMENTS" shall include the following:
(i) obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described in clause (i) above maturing not more than one month from the
date of acquisition thereof, provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time rated
by any nationally recognized rating agency in its highest short-term
rating available;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than
365 days or a remaining maturity of more than 30 days) denominated in
United States dollars of any U.S. depository institution or trust
Servicer incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution
or trust Servicer; provided that the debt obligations of such
depository institution or trust Servicer (or, in the case of the
principal depository institution in a depository institution holding
Servicer system, debt obligations of the depository institution holding
Servicer) at the date of acquisition thereof have been rated by any
nationally recognized rating agency in its highest short-term rating
available; and provided further that, if the depository or trust
Servicer is a principal subsidiary of a bank holding Servicer and the
debt obligations of such subsidiary are not separately rated, the
applicable rating shall be that of the bank holding Servicer; and,
provided further that, if the original maturity of such short-term
obligations of a domestic branch of a foreign bank or trust Servicer
shall exceed 30 days, the short-term rating of such institution shall
be rated by any nationally recognized rating agency in its highest
short-term rating available;
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(iv) commercial paper and demand notes (having original
maturities of not more than 365 days) of any corporation incorporated
under the laws of the United States or any state thereof which on the
date of acquisition has a remaining maturity of not more than 30 days
and has been rated by any nationally recognized rating agency in its
highest short-term rating available;
(v) a money market fund or a qualified investment fund rated
by any nationally recognized rating agency in its highest short-term
rating available; and
(vi) other obligations or securities that are acceptable to
any nationally recognized rating agency as a Permitted Instrument, as
evidenced in writing.
Section 3.09 Primary Insurance Policies.
The Servicer shall not take any action which would result in
non-coverage under any applicable mortgage insurance policy or any loss which,
but for the actions of the Servicer, would have been covered thereunder. To the
extent coverage is in full force and effect on the Mortgage Loans as of the
Cut-off Date, the Servicer shall use reasonable efforts to keep or cause to be
kept in full force and effect each such mortgage insurance policy until the
principal balance of the related Mortgage Loan is reduced to 80% or less of the
Appraised Value in the case of such a Mortgage Loan having a Loan-to-Value Ratio
at origination in excess of 80%. The Servicer shall pay or use reasonable
efforts to cause the premium for each mortgage insurance policy to be paid on a
timely basis.
Section 3.10 Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall use reasonable efforts to cause to be maintained
for each Mortgage Loan and on property acquired upon foreclosure, or deed in
lieu of foreclosure, of any Mortgage Loan, fire insurance with extended coverage
and flood insurance in accordance with Accepted Servicing Practices. Any amounts
applied to the Servicer under any such policies (other than amounts applied to
the restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the Servicer's
normal servicing procedures) shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 3.07. In the event that the Servicer
shall obtain and maintain a blanket policy insuring against hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.10(a), it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with the first sentence of
this Section 3.10(a) and there shall have been a loss which would have been
covered by such policy, deposit in the Custodial Account the amount not
otherwise payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to present, on behalf of itself and the Trust Fund,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
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(b) The Servicer shall obtain and maintain at its own expense and keep
in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the
Servicer's officers and employees and other persons acting on behalf of the
Servicer in connection with its activities under this Agreement. The amount of
coverage shall be at least equal to the coverage that would be required by
Xxxxxx Xxx or Xxxxxxx Mac with respect to the Servicer if the Servicer were
servicing and administrating the Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac in
addition to other mortgage loans being serviced and administered by the
Servicer.
Section 3.11 Enforcement of Due-On-Sale Clauses.
(a) When any Mortgaged Property is conveyed, the Servicer shall declare
such Mortgage Loan due and payable and shall enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage in accordance with Accepted Servicing
Practices, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any insurance policy. Notwithstanding the
foregoing:
(i) the Servicer shall not be deemed to be in default under
this Section 3.11(a) by reason of any transfer or assumption which the
Servicer is restricted by law from preventing; and
(ii) if the Servicer determines that it is reasonably likely
that any Mortgagor will bring, or if any Mortgagor does bring, legal
action to declare invalid or otherwise avoid enforcement of a
due-on-sale clause contained in any Mortgage Note or Mortgage, the
Servicer shall not be required to enforce the due-on-sale clause or to
contest such action.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.11(a), in any case in which a Mortgaged
Property is to be conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption or modification agreement or supplement to the Mortgage
Note or Mortgage which requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the Mortgagor
from liability on the Mortgage Loan, the Servicer is authorized, subject to the
requirements of the sentence next following, to execute and deliver, on behalf
of the Trustee, the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or supplement to the
Mortgage Note or Mortgage or other instruments as are reasonable or necessary to
carry out the terms of the Mortgage Note or Mortgage or otherwise to comply with
any applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. The Servicer shall execute and deliver such documents
only if it reasonably determines that (i) its execution and delivery thereof
will not conflict with or violate any terms of this Agreement or cause the
unpaid balance and interest on the Mortgage Loan to be uncollectible in whole or
in part, (ii) any required consents of insurers under any related insurance
policies have been obtained and (iii) subsequent to the closing of the
transaction involving the assumption or transfer (A) the Mortgage Loan will
continue to be secured by a first mortgage lien pursuant to the terms of the
Mortgage, (B) such transaction will not adversely affect the coverage under any
related Insurance Policies, (C) the Mortgage Loan will fully amortize over the
remaining term thereof, (D) no material term of the Mortgage Loan (including the
interest rate on the Mortgage Loan) will be altered nor will the term of the
Mortgage Loan be changed and (E) if the seller/transferor of the Mortgaged
Property is to be released from liability on the Mortgage Loan, such release
will not (based on the Servicer's or the Subservicer's good faith determination)
adversely affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Servicer in accordance with the foregoing, the
Custodian shall execute any necessary instruments for such assumption or
substitution of liability as directed by the Servicer. Upon the closing of the
transactions contemplated by such documents, the Servicer shall cause the
originals or true and correct copies of the assumption agreement, the release
(if any), or the modification or supplement to the Mortgage Note or Mortgage to
be delivered to the Custodian and deposited with the Mortgage File for such
Mortgage Loan. Any fees collected by the Servicer or the related Subservicer for
entering into an assumption or substitution of liability agreement will be
retained by the Servicer or such Subservicer as additional servicing
compensation. The Servicer shall notify the Master Servicer and the Trustee, in
writing, of any such assumption, modification, supplement or substitution of
liability with respect to any Mortgage Loan and the date thereof.
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(c) The Servicer or the related Subservicer, as the case may be, shall
be entitled to approve a request from a Mortgagor for a partial release of the
related Mortgaged Property, the granting of an easement thereon in favor of
another Person, any alteration or demolition of the related Mortgaged Property
or other similar matters if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected thereby.
Any fee collected by the Servicer or the related Subservicer for processing such
a request will be retained by the Servicer or such Subservicer as additional
servicing compensation.
(d) Subject to any other applicable terms and conditions of this
Agreement, the Custodian and Servicer shall be entitled to approve an assignment
in lieu of satisfaction with respect to any Mortgage Loan, provided the obligee
with respect to such Mortgage Loan following such proposed assignment provides
the Custodian and Servicer with a "Certification" in the form attached hereto as
Exhibit F, in form and substance satisfactory to the Custodian and Servicer,
providing the following: (i) that the Mortgage Loan is secured by Mortgaged
Property located in a jurisdiction in which an assignment in lieu of
satisfaction is required to preserve lien priority, minimize or avoid mortgage
recording taxes or otherwise comply with, or facilitate a refinancing under, the
laws of such jurisdiction; (ii) that the substance of the assignment is, and is
intended to be, a refinancing of such Mortgage Loan and that the form of the
transaction is solely to comply with, or facilitate the transaction under, such
local laws; (iii) that the Mortgage Loan following the proposed assignment will
have a rate of interest at least 0.25 percent below or above the rate of
interest on such Mortgage Loan prior to such proposed assignment and (iv) that
such assignment is at the request of the borrower under the related Mortgage
Loan, upon approval of such assignment in lieu of satisfaction with respect to
any Mortgage Loan, the Servicer shall receive cash in an amount equal to the
unpaid principal balance of and accrued interest on such Mortgage Loan and the
Servicer shall treat such amount as a Full Prepayment with respect to such
Mortgage Loan for all purposes hereof.
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Section 3.12 Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall foreclose upon or otherwise comparably convert
the ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 3.03; provided, however,
that the Servicer shall notify the Master Servicer of the Servicer's intent to
foreclose on any such properties at least 5 Business Days prior to the
commencement of foreclosure on such properties. In connection with such
foreclosure or other conversion, the Servicer shall, consistent with this
Agreement, follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities; provided that the Servicer shall not be liable in any respect
hereunder if the Servicer is acting in a manner that is consistent with the
provisions of this Agreement. The foregoing is subject to the proviso that the
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it shall determine
(i) that such restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to the Trust Fund after reimbursement to itself
for such expenses and (ii) that such expenses will be recoverable to it through
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 3.07. In the event of a determination and notice to the Master Servicer
by the Servicer pursuant to this Section 3.12(a), the Servicer shall be entitled
to reimbursement of its funds so expended pursuant to Section 3.07. The Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceeding; provided, however, that it shall be entitled to reimbursement
thereof from the related Mortgaged Property, as contemplated in Section 3.07.
(b) Any proceeds collected by the Servicer with respect to any Mortgage
Loan, including without limitation, Insurance Proceeds, Liquidation Proceeds or
any other proceeds realized with respect to the sale of the Mortgage Loan (other
than any such amounts relating to REO Property) shall be applied as follows:
first, to reimburse the Servicer for all unreimbursed Monthly Advances with
respect to such Mortgage Loan and servicing advances and expenses incurred by
the Servicer with respect to such Mortgage Loan in accordance with Accepted
Servicing Practices and this Agreement, including without limitation, taxes,
assessments and hazard insurance premiums; second, to pay to the Servicer any
unpaid Servicing Fees owed with respect to the related Mortgage Loan; third,
Master Servicer to pay to the Master Servicer any amounts remaining.
Section 3.13 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan or
upon the receipt by the Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Servicer will immediately
notify the Master Servicer and the Custodian by delivering to the Master
Servicer and the Custodian a Request for Release. Upon receipt of such Request
for Release, the Custodian shall to release the related Mortgage File to the
Servicer. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to funds attributable to the
Mortgage Loans on deposit in the Custodial Account.
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(b) From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Servicer will deliver to the Master
Servicer and the Custodian a Request for Release. Upon receipt of such Request
for Release, the Custodian shall deliver the related Mortgage File, as
requested, to the Servicer. The Servicer shall cause each Mortgage File so
released to be returned to the Custodian when the need therefor by the Servicer
no longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or (ii) the Mortgage File or such document has been delivered
directly or through a Subservicer to an attorney, or to a public trustee or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially.
Section 3.14 [Reserved]
Section 3.15 REO Property.
In the event that title to a Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
to the REO Property shall be taken in the name of the Trustee for Trust Fund on
the date (the "Acquisition Date") on which such Mortgaged Property becomes an
REO Property, or in the name of such other Person or Persons as requested by the
Trustee, provided, however, that title to the REO Property shall not be taken in
the name of the Servicer unless the Servicer has obtained an Opinion of Counsel
satisfactory to it from an attorney duly licensed to practice law in the State
where the REO Property is located to the effect that the Servicer shall not
suffer any adverse tax, financial, regulatory or licensing consequences as a
result of obtaining record title to the REO property. The Person or Persons
other than the Trustee holding record title to an REO Property shall acknowledge
in writing that such title is being held as nominee for the Trustee.
The Servicer by itself or through an affiliate shall manage the REO
Property in accordance with the terms and provisions of Accepted Servicing
Practices and in a manner that is consistent with the manner in which it would
manage its own property, and in a manner that is in the best interests of the
Trust Fund. Any proceeds collected by the Servicer after the Acquisition Date
with respect to the REO Property, including without limitation, insurance,
liquidation or any proceeds realized with respect to the sale or rental of the
REO Property (collectively, the "Cash Receipts") shall be promptly applied as
follows: first, to pay the commission of the broker, if any, who introduced the
purchaser of the REO Property to the Subservicer; and second, to reimburse the
Subservicer and the Servicer for all unreimbursed Monthly Advances and pre and
post Acquisition Date cash outlays made by the Subservicer and the Servicer (or
such affiliate) with respect to such REO Property in accordance with Accepted
Servicing Practices, including without limitation, taxes, assessments and hazard
insurance premiums. All Cash Receipts remaining thereafter shall be distributed
to the Master Servicer on the Remittance Date which occurs one calendar month
after the sale of the REO Property.
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The Servicer shall be relieved of its obligation to advance to the
Master Servicer on the 18th day of the month following the Acquisition Date
uncollected principal and net interest with respect to the Mortgage Loan
relating to the REO Property.
Section 3.16 Compensating Interest.
Notwithstanding any other provisions contained herein, the amount of
servicing compensation that the Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Remittance Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Remittance Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee to which the Servicer is entitled
pursuant to Section 3.07, and, second, to any income or gain realized from any
investment of funds held in the Custodial Account to which the Servicer is
entitled pursuant to Section 3.08. In making such reduction, the Servicer (i)
will not withdraw from the Custodial Account any such amount representing all or
a portion of the Servicing Fee to which it is entitled pursuant to Section 3.07,
and (ii) will not withdraw from the Custodial Account any such amount to which
it is entitled pursuant to Section 3.08.
Section 3.17 Filing Requirements.
The servicing officer in charge of servicing of the Servicer to execute
and deliver a certification (the "Backup Certification") in the form attached
hereto as Exhibit H, not later than March 20 of each calendar year; provided
that such Backup Certification shall no longer be required if periodic reports
under the Securities Exchange Act of 1934 are no longer required with respect to
the Securitization Trust.
Section 3.18 Securitization Servicing.
(a) If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Servicer shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on "prohibited transactions" as defined Section 860(a)(2) of
the Code and the tax on "contributions" to a REMIC set forth in Section 860(d)
of the Code) unless the Servicer has received an Opinion of Counsel (at the
expense of the party seeking to take such an action) to the effect that the
contemplated action will not endanger such REMIC status or result in the
imposition of any such tax.
(b) (i) The special foreclosure rights in the form of Exhibit K
are incorporated herein with respect to the applicable Mortgage Loans.
(ii) In connection with any notice required to be delivered
pursuant to clause (a) of Exhibit K, so long as the Seller or an
affiliate thereof is the holder of the most junior of the Subordinate
Certificates representing an interest in the Trust Fund in respect of
such Mortgage Loan, as applicable, the Seller or its affiliate shall
provide evidence to the Servicer as to the Person that is the 100%
holder of the most junior of the Subordinate Certificates, in the form
of an officer's certificate of the Seller setting forth the 100% holder
of the most junior of the Subordinate Certificates together with (A) if
the Subordinate Certificate is registered in the name of the Depository
Trust Company, an account statement through the applicable
broker-dealer or such other evidence as the Servicer shall reasonably
request or (B) if the Subordinate Certificate is held in physical form,
the trade confirmation with respect to such Subordinate Certificate or
such other evidence as the Servicer shall reasonably request.
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(iii) [Reserved]
(iv) So long as the Seller or any affiliate thereof is the
holder of the most junior of the Subordinate Certificates, the Seller
shall deliver to the Servicer written notice of any transfer of such
Subordinate Certificate promptly upon any transfer thereof, which
notice shall set forth the name and address of the transferee and the
date upon which such transfer was effected.
(v) It is expressly understood and agreed by the parties
hereto that the servicing procedures set forth in this Section 3.18 and
Exhibit K hereto differ from the standard servicing practices of the
Servicer and that the Servicer's compliance with such procedures may
(i) increase the time to resolution of any foreclosure or in respect of
any REO Property, and the Servicer shall not be responsible for any
losses resulting from such delays and (ii) result in additional
expenses that will be borne by the Trust Fund or holder of the most
junior of the Subordinate Certificates, as applicable.
(c) At the option of the Servicer, in the event that any payment due
under any Mortgage Loan and not postponed is not paid when the same becomes due
and payable, or in the event the related Mortgagor fails to perform any other
covenant or obligation under such Mortgage Loan and such failure continues
beyond any applicable grace period, the Servicer shall take such action, which
action (notwithstanding anything contained herein or incorporated by reference
to the contrary) may include but is not limited to effecting the sale of such
Mortgage Loan on an as-is basis, as (1) the Servicer would undertake under
similar circumstances with respect to a similar mortgage loan held for its own
account for investment, (2) shall be consistent with accepted servicing
practices, and (3) the Servicer shall determine prudently to be in the best
interest of the Servicer. The Servicer, on behalf of the Trust Fund, may also,
in its sole and exclusive discretion, as an alternative to foreclosure, sell
defaulted Mortgage Loans at fair market value to third-parties, if the Servicer
believes, in its sole and exclusive discretion, that such sale would maximize
proceeds to the Master Servicer (on a present value basis) with respect to each
such Mortgage Loan. Notwithstanding any other provision in this Agreement or
otherwise, the Servicer shall have no liability to the Trust Fund or any other
party for the Servicer's determination hereunder.
(d) From and after the date hereof, Servicer, and any successor
servicer hereunder, shall be subject to the supervision of the Master Servicer,
which Master Servicer shall be obligated to enforce Servicer's obligation to
service the Mortgage Loans in accordance with the provisions of this Agreement.
Pursuant to the Pooling Agreement, the Master Servicer and the Trustee have the
rights (but not the obligations, except to the extent expressly set forth in the
Pooling Agreement) as the Trust Fund under this Agreement to enforce the
obligations of Servicer, including, without limitation, the enforcement of (i)
the document delivery requirements set forth in the Servicing Agreement and (ii)
remedies with respect to representations and warranties made by Servicer in this
Agreement, and shall be entitled to enforce all of the obligations of Servicer
thereunder insofar as they relate to the Mortgage Loans. Servicer shall not
amend or agree to amend, modify, waive, or otherwise alter any of the terms or
provisions of this Agreement which amendment, modification, waiver or other
alteration would in any way (i) materially affect the Mortgage Loans or
Servicer's performance under this Agreement with respect to the Mortgage Loans
without the prior written consent of the Trustee and the Master Servicer or (ii)
materially and adversely affect the interests of the Certificateholders in the
Mortgage Loans.
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(e) The Master Servicer shall be entitled to terminate the rights and
obligations of Servicer under this Agreement, as provided in Section 6.01
(Events of Default of the Servicer) of this Agreement. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer be required to
assume any of the obligations of the Trust Fund under the Servicing Agreement;
and in entering into this Agreement, in connection with the performance by the
Master Servicer of any duties it may have hereunder, and in the exercise by the
Master Servicer of its rights the parties and other signatories hereto, except
Servicer, agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability, immunities and indemnities afforded to
the Master Servicer under the Pooling Agreement.
(f) A copy of all assessments, attestations, reports and certifications
required to be delivered by Servicer under this Agreement shall be delivered to
the Master Servicer by the date(s) specified herein or therein, and where such
documents are required to be addressed to any party, such addressees shall
include the Master Servicer and the Master Servicer shall be entitled to rely on
such documents.
Section 3.19 Transfer of Servicing to Central Mortgage Company.
On the Transfer Date, the Servicer shall cause all servicing rights and
obligations with respect to the Mortgage Loans to be transferred to Central
Mortgage Company ("Central"), subject to all legal and regulatory requirements.
The Seller will pay to the Servicer a fee of $5.00 for each Mortgage Loan
transferred on the Transfer Date. In connection with such transfer, and at no
cost or expense to Seller:
(a) On November 1, 2006, the Servicer will transfer to Central all
funds and data collected with respect to the Mortgage Loans through the Transfer
Date. On November 15, 2006, Central will transfer all funds and data collected
with respect to the Mortgage Loans through the Transfer Date and for the period
after the Transfer Date through November 15th. On the Remittance Date in
November 2006, the Servicer shall remit all such funds to the Master Servicer.
(b) Central shall take delivery of the servicing files on the Transfer
Date or within five business days thereafter at the place or places designated
by Seller. From and after such delivery of the servicing files to Central, all
risk of loss or damage with respect to such servicing files occurring thereafter
shall be borne by Central.
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(c) Servicer shall prepare and distribute to each Mortgagor forms
relating to interest paid by the Mortgagor on the related Mortgage Loan and, to
the extent that moneys are paid to such Mortgagor, forms relating to interest
paid to the Mortgagor, and shall report the same to the Internal Revenue Service
with respect to the periods prior to and including the Transfer Date.
(d) Servicer and Central each shall cooperate to notify each Mortgagor
of the transfer of the servicing of his or her Mortgage Loan and the new address
to which payments on the Mortgage Loans should be sent after the Transfer Date,
all in accordance with applicable law and regulation.
(e) Following the Transfer Date, Servicer shall, on a daily basis, send
to Central any and all amounts received by Servicer on account of the Mortgage
Loans, said remittance to be by wire transfer in the case of cash received and
by overnight delivery service with respect to checks and other instruments and
any Mortgagor correspondence, insurance notices, tax bills or any other
correspondence or documentation in respect of any Mortgage Loan that are
received by Servicer after the Transfer Date.
(f) Servicer shall be responsible for preparing and delivering, no
later than five (5) calendar days following the Transfer Date, letters notifying
insurers, taxing authorities, foreclosure attorneys, and any other third parties
who will have a need to know of the transfer of servicing with respect to the
Mortgage Loans to Successor Servicer.
(g) The aggregate balances of all escrow/impound accounts, if any, held
by Servicer as of the Transfer Date shall be remitted, by wire transfer to such
account or accounts as may be designated by Seller or Central, accompanied by a
report identifying in detail reasonably acceptable to Seller the Mortgage Loans
to which such balances relate, within one (1) business day following the
Transfer Date.
(h) A final trial balance report and other customary service transfer
related reports shall be forwarded to Seller and Central within one (1) business
day of the Transfer Date. The final trial balance report shall contain the
minimum information outlined in Seller's closing/servicing transfer
instructions, including, without limitation, information relating to the amount
of any unpaid taxes, charges, assessments, insurance premiums or similar matters
with respect to each Mortgage Loan.
(i) Servicer shall comply with all reasonable servicing transfer
instructions of Central.
(j) The Seller shall reimburse the Servicer for all Monthly Advances
not previously reimbursed and all accrued and unpaid Servicing Fees.
(k) Central shall notify the Master Servicer in writing of the date
when servicing has been transferred to Central.
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ARTICLE IV
PAYMENTS TO THE TRUST FUND
Section 4.01 Distributions.
On each Remittance Date (including the Remittance Date in November,
2006, notwithstanding the Transfer Date) the Servicer shall distribute to the
Master Servicer in immediately available funds (by wire transfer or otherwise)
to the account of such Master Servicer in accordance with the wire instructions
set forth in, Section 8.04, the Remittance Amount payable to such Master
Servicer and the Servicer will distribute the balance of the Servicing Fee to
Luminent in the same manner, using the wiring instructions set forth in Section
8.04.
Section 4.02 Statements to the Master Servicer.
No later than the 5th Business Day of each month (including such date
in November, 2006, notwithstanding the Transfer Date), the Servicer shall
forward by mail to the Master Servicer, and make available to the Master
Servicer via electronic format, a statement setting forth the information in
respect of the Mortgage Loans as set forth in Exhibit E.
Within a reasonable period of time after the end of each calendar year,
the Servicer shall furnish to the Master Servicer a statement containing the
information set forth in clauses (i) and (ii) above aggregated for such calendar
year. Such obligation of the Servicer shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Code as from time to time in force.
Section 4.03 Monthly Advances by the Servicer.
Prior to such time as title to a Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, on or before each Remittance
Date, the Servicer shall either (i) deposit in the Custodial Account an amount
equal to the Monthly Advance, if any, or (ii) cause to be made an appropriate
entry in the records of the Custodial Account that funds in such account that
are being held for future distribution or withdrawal or which do not belong to
the Trust Fund have been used by the Servicer in discharge of any such Monthly
Advance or (iii) make advances in the form of any combination of (i) and (ii)
aggregating the amount of such Monthly Advance. Any funds being held for future
distribution to the Master Servicer and so used shall be replaced by the
Servicer by deposit in the Custodial Account on any future Remittance Date to
the extent that funds in the Custodial Account relating to the Mortgage Loans on
such Remittance Date shall be less than payments to the Master Servicer required
to be made on such date.
Section 4.04 Reports and Returns to be Filed by the Servicer.
The Servicer shall file information reports with respect to the receipt
of mortgage interest received in a trade or business, reports of foreclosures
and abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
such Sections 6050H, 6050J and 6050P of the Code.
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Section 4.05 Format of Reports and Statements.
The reports and statements delivered by the Servicer to the Trust Funds
pursuant to this Article III shall be substantially in the form attached hereto
as Exhibit E.
ARTICLE V
THE SERVICER
Section 5.01 Indemnification.
The Servicer shall indemnify and hold harmless the Trust Fund, the
Trustee, the Master Servicer, the Securities Administrator and any director,
officer, employee or agent of the foregoing (each, an "Indemnified Party")
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Indemnified Party may sustain arising out of, resulting from, or caused
by the failure by the Servicer to perform its duties hereunder. The Indemnified
Party shall notify the Servicer promptly if a claim is made by a third party
with respect to this Agreement or the Mortgage Loans, and the Servicer may
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree that may be entered against it or the Indemnified Party in
respect of such claim. The Indemnified Party promptly shall reimburse the
Servicer for all amounts advanced by it pursuant to the preceding sentence
unless the Servicer's indemnification obligation described in this paragraph is
applicable.
The Trust Fund shall indemnify and hold harmless the Servicer and any
director, officer, employee or agent of the Servicer against any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses incurred in connection with
any audit, controversy or judicial proceeding relating to a governmental taxing
authority or legal action relating to this Agreement, other than any such
amounts incurred by reason of a material breach by the Servicer of any
representation or warranty made by it herein or the failure by the Servicer to
perform its duties hereunder.
The Servicer shall not be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may in its discretion undertake any such
legal action relating to the servicing of the Mortgage Loans under this
Agreement that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities payable or reimbursable out of the Custodial
Account as provided by Section 3.07 unless the Servicer's indemnification
obligation described in Section 5.01(a) above is applicable and, notwithstanding
any other provision hereof, distributions pursuant to Section 4.01 shall be
reduced accordingly.
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Section 5.02 Liability of the Servicer and Others.
The Servicer shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the Servicer
herein.
Neither the Servicer, nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Trustee, the Master
Servicer, the Securities Administrator or the Trust Fund for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such person against any breach of
warranties or representations made herein or any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
Section 5.03 Merger or Consolidation of the Servicer.
The Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the Commonwealth of Pennsylvania,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement or any of
the Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. Notwithstanding anything in
this Agreement the contrary, the conversion of GMAC Mortgage Corporation's
organizational structure from a Pennsylvania corporation to a Delaware limited
liability company shall not require the consent of any party or notice to any
party and shall not in any way affect the rights or obligations of GMAC Mortgage
Corporation hereunder.
Section 5.04 Servicer Resignation; Assignment of Agreement.
The Servicer may assign this Agreement or resign from the obligations
and duties hereby imposed on it upon 60 days prior written notice to the Master
Servicer. Upon the Servicer's resignation, the Master Servicer shall either
assume the responsibilities, duties, rights and obligations of the Servicer or
appoint a Successor Servicer in accordance with Section 8.01. No such
resignation shall become effective until a successor which satisfies the
requirements of Section 8.01 and is mutually acceptable to the Servicer and the
Master Servicer has assumed the Servicer's duties hereunder, unless a
determination has been made that the Servicer's duties hereunder are no longer
permissible under applicable law.
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Section 5.05 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Servicer shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of the REMIC as a REMIC or
(ii) result in the imposition of a tax upon the REMIC (including but not limited
to the tax on "prohibited transactions" as defined Section 860(a)(2) of the Code
and the tax on "contributions" to a REMIC set forth in Section 860(d) of the
Code) unless the Servicer has received an Opinion of Counsel (at the expense of
the party seeking to take such an action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section 5.06 Right to Examine Servicer Records.
The Master Servicer, or its designee, shall have the right to examine
and audit any of the related books, records or other information of the
Servicer, whether held by the Servicer or by another on its behalf, with respect
to or concerning this Agreement or the Mortgage Loans, during business hours or
at such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice.
The Servicer shall provide to the Master Servicer and any supervisory
agents or examiners which may relate to the Master Servicer access to any
documentation regarding the Mortgage Loans which may be required by any
applicable regulations, including but not limited to any disaster
recovery/business continuity plan and/or any measures taken by the Servicer to
protect Consumer Information. Such access shall be afforded without charge, upon
reasonable request, upon five Business Days prior written notice, during normal
business hours and at the offices of the Servicer, all in accordance with
applicable federal government regulations.
The Servicer will be entitled to reimbursement of any third party
expenses under the terms of the Pooling Agreement incurred by it in connection
with any examination pursuant to this Section 5.06.
ARTICLE VI
DEFAULT
Section 6.01 Events of Default of the Servicer.
Event of Default, wherever used herein, means any one of the following
events:
(a) the Servicer shall fail to remit to the Master Servicer any payment
required to be made under the terms of this Agreement and such failure shall
continue unremedied for a period of five days after the date upon which written
notice or oral notice (promptly confirmed in writing) of such failure, requiring
such failure to be remedied, shall have been given to the Servicer by the Master
Servicer; or
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(b) the Servicer shall fail to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement and such failure shall continue unremedied for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Master Servicer; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or appointing a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of, or relating to, the Servicer
or of, or relating to, all or substantially all of the property of the Servicer;
or
(e) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of, or commence
a voluntary case under, any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(f) any failure of the Servicer to be in compliance with applicable
qualification or licensing laws of any jurisdiction where Mortgaged Property is
located, provided that such failure has a material adverse effect on the ability
of the Servicer to perform its obligations under this Agreement; or
(g) the Servicer ceases to meet the qualifications of either FNMA or
FHLMC; or
(h) the Servicer's servicer rating (if any) by any rating agency for a
classification of loans sold under this Agreement falls below an "average"
rating at any time after the effectiveness of this Agreement.
If an Event of Default described in this Section shall occur, then, and
in each and every such case, so long as such Event of Default shall not have
been remedied, the Master Servicer by notice in writing to the Servicer, may
terminate all of the rights and obligations of the Servicer under this Agreement
other than its right to receive servicing compensation for servicing the
Mortgage Loans hereunder during any period prior to the date of such termination
and may exercise any and all other remedies available at law or equity;
provided, however, that any liability of the Servicer under this Agreement
arising prior to such termination shall survive. On or after the receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement shall, in accordance with Section 8.01, pass to and be vested in
the Master Servicer or the Successor Servicer appointed pursuant to Section
8.01. If the Servicer obtains knowledge of an Event of Default, the Servicer
shall promptly notify the Master Servicer thereof.
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Section 6.02 Waiver of Defaults.
The Master Servicer may waive such default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default, as defined in Section 6.01, arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
ARTICLE VII
TERMINATION
Section 7.01 Termination.
The obligations and responsibilities of the Servicer hereunder shall
terminate upon the earlier of: (i) the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan and
the remittance of all funds due hereunder, or (ii) by mutual consent of the
Servicer and the Master Servicer in writing.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Successor to the Servicer.
Any successor servicer appointed as provided herein (the "Successor
Servicer") shall have a net worth of not less than $10,000,000 and shall
execute, acknowledge and deliver to the Servicer and the Master Servicer an
instrument accepting such appointment, whereupon such Successor Servicer shall
succeed to the rights and obligations of the Servicer under the Subservicing
Agreements and shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer with like effect
as if originally named as a party to this Agreement. The Successor Servicer
shall promptly deliver a copy of any such instrument to the Custodian. The
resignation or removal of the Servicer hereunder shall not become effective
until a successor shall be appointed pursuant to this Section 8.01.
In connection with the termination or resignation of the Servicer as
servicer hereunder, either (i) the Successor Servicer shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or (ii)
the Servicer shall cooperate with the Successor Servicer in causing MERS to
execute and deliver an Assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the Successor Servicer. The Servicer shall file or cause to be filed
any such assignment in the appropriate recording office. The Successor Servicer
shall cause such assignment to be delivered to the Custodian promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was recorded.
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Section 8.02 Entire Agreement; Amendment.
This Agreement may be amended from time to time by the Servicer, the
Master Servicer and the Securities Administrator by written agreement
acknowledged by the Trustee. This Agreement shall constitute the entire
agreement between the parties.
Section 8.03 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.04 Notices.
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, or sent by overnight courier to:
(a) in the case of the Servicer,
GMAC Mortgage Corporation,
000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000
(b) in the case of the Seller,
Maia Mortgage Finance Statutory Trust,
000 Xxxxxxxxxx Xx., 00xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(c) in the case of the Master Servicer and Securities Administrator,
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Group, Luminent 2006-6
Or, in the case of overnight deliveries:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 21045)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(c) in the case of the Trustee,
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trustee/The Seller Mortgage Trust 2006-6
Distributions that may be made by wire transfer pursuant to Section
4.01 shall be made to the following wire accounts,
If to Xxxxx Fargo:
Xxxxx Fargo Bank, N.A.
ABA#: 000-000-000
Account Name: SAS CLEARING
Account Number: 0000000000
For further credit to: Luminent 2006-6, Account # 00000000
If to Luminent:
Bank of America
ABA#: 0000-0000-0
Account Name: Maia Mortgage Finance Statutory Trust
Account Number: 12356-78762
Section 8.05 Severability of Provisions.
If any provision of this Agreement shall be for any reason whatsoever
held invalid, then such provision shall be deemed severable from the remaining
provisions of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 8.06 No Partnership.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent for
the Trust Fund.
Section 8.07 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 8.08 Counterparts; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 5.04, this Agreement
shall inure to the benefit of and be binding upon the Servicer and the Trust
Fund and their respective successors and assigns.
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Section 8.09 Limited Role of the Trustee.
The Trustee shall have no obligations or duties under this Agreement
except as expressly set forth herein. No implied duties on the part of the
Trustee shall be read into this Agreement. Nothing herein shall be construed to
be an assumption by the Trustee of any duties or obligations of any party to
this Agreement, the duties of the Trustee being solely those set forth in the
Pooling Agreement. The Trustee is entering into this Agreement solely in its
capacity as Trustee under the Agreement and not individually and there shall be
no recourse against the Trustee in its individual capacity hereunder or for the
payment of any obligations of the Trust or the Trust Fund.
ARTICLE IX
COMPLIANCE WITH REGULATION AB
Section 9.01 Intent of the Parties; Reasonableness.
The Purchaser and the Servicer acknowledge and agree that the purpose
of this Article VIII is to facilitate compliance by the Servicer and the Seller
with the provisions of Regulation AB and related rules and regulations of the
Commission and that the provisions of this Reg AB Addendum shall be applicable
to all Mortgage Loans included in a Securitization Transaction closing on or
after January 1, 2006. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are registered under the Securities
Act, the Servicer acknowledges that investors in privately offered securities
may require that the Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). 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 Purchaser,
any Master Servicer or any Depositor in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Servicer shall
cooperate fully with the Purchaser and any Master Servicer to deliver to the
Purchaser (including any of its assignees or designees), any Master Servicer and
any Depositor, any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Purchaser,
the Master Servicer or any Depositor to permit the Purchaser, such Master
Servicer or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Servicer, any Subservicer and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed by
the Depositor to be necessary in order to effect such compliance.
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The Purchaser (including any of its assignees or designees) shall
cooperate with the Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required to comply with Regulation AB.
Section 9.02 Additional Representations and Warranties of the Servicer.
(a) The Servicer hereby represents to the Purchaser, to any Master
Servicer and to any Depositor, as of the date on which information is first
provided to the Depositor under Section 9.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Servicer
is not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other Securitization
Transaction due to any default by the Servicer as a Servicer; (ii) the Servicer
has not been terminated as servicer in a residential mortgage loan
securitization due to a servicing default; (iii) no material noncompliance with
the applicable Servicing Criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been disclosed
or reported by the Servicer; (iv) no material changes to the Servicer's policies
or procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreement for mortgage loans of a type similar
to the Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no changes to
the Servicer's financial condition that could have a material adverse effect on
the performance by the Servicer of its servicing obligations under this
Agreement; (vi) there are no legal or governmental proceedings pending (or
governmental proceedings known to be contemplated) against the Servicer or any
Subservicer that are material to investors in the related Securitization
Transaction; and (vii) there are no affiliations, relationships or transactions
relating to the Servicer or any Subservicer with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a type
described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser, any Master Servicer or any
Depositor on any date following the date on which information is first provided
to the Purchaser, any Master Servicer or any Depositor under Section 9.03, the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Section 9.03 Information to Be Provided by the Servicer.
(a) In connection with any Securitization Transaction, the Servicer
shall (i) within five Business Days following a request by the Depositor,
provide to the Depositor (or, as applicable, cause each Subservicer to provide),
in writing and in form and substance reasonably satisfactory to the Depositor,
the information and materials specified in paragraphs (a), (b), (c), (f) and (g)
of this Section, provided, that the Servicer shall not be required to provide
such information and materials with respect to a Subservicer if Regulation AB
does not require disclosure of such information and materials and (ii) as
promptly as practicable following notice to or discovery by the Servicer,
provide to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Depositor) the information specified in paragraph
(d) of this Section.
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(b) If so requested by the Depositor, the Servicer shall provide such
information regarding description of any affiliation or relationship, as
described in Item 1119 of Regulation AB, between the Servicer, each Subservicer
and any of the following parties to a Securitization Transaction, as such
parties are identified to the Servicer by the Depositor in writing in advance of
such Securitization Transaction:
(i) the sponsor;
(ii) the depositor;
(iii) the issuing entity;
(iv) any servicer;
(v) any trustee;
(vi) any originator;
(vii) any significant obligor;
(viii) any enhancement or support provider; and
(ix) any other material transaction party.
(c) [Reserved].
(d) [Reserved].
(e) [Reserved].
(f) If so requested by the Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a "Servicer"), as is requested for the purpose of compliance with
Items 1108, 1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(i) the Servicer's form of organization;
(ii) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under the Agreement and any
Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer's portfolio of residential mortgage loans of
a type similar to the Mortgage Loans and information on factors related
to the Servicer that may be material to any analysis of the servicing
of the Mortgage Loans or the related asset-backed securities, as
applicable, including, without limitation:
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(A) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving the
Servicer have defaulted because of servicing during the
three-year period immediately preceding the related
Securitization Transaction;
(B) the extent of outsourcing the Servicer utilizes;
(C) whether there has been previous disclosure of
material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the
three-year period immediately preceding the related
Securitization Transaction;
(D) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization due to
a servicing default; and
(E) such other information as required by Item
1108(b)(2) of Regulation AB;
(iii) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect to
the servicing function it will perform under the Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to the
Mortgage Loans;
(iv) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse financial
event or circumstance involving the Servicer could have a material
adverse effect on the performance by the Servicer of its servicing
obligations under the Agreement or any Reconstitution Agreement;
(v) a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be made
on residential mortgage loans serviced by it during the three-year
period immediately preceding the related Securitization Transaction,
or, if such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the reasons
for such failure to advance;
(vi) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(vii) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans
or workouts; and
(viii) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the effect of any
grace period, re-aging, restructuring, partial payments considered
current or other practices with respect to delinquency and loss
experience.
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(g) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, for so long
as the Depositor is required to file reports under the Exchange Act with respect
to a Securitization Transaction, the Servicer shall (or shall cause each
Subservicer to) (i) provide prompt notice to the Purchaser, any Master Servicer
and any Depositor in writing of (A) any litigation or governmental proceedings
involving the Servicer or any Subservicer that would be material to investors in
the related Securitization Transaction, (B) any affiliations or relationships of
the type described in Item 1119 of Regulation AB that develop following the
closing date of a Securitization Transaction between the Servicer or any
Subservicer and any of the parties specified in clause (D) of paragraph (a) of
this Section (and any other parties identified in writing by the requesting
party) with respect to such Securitization Transaction, (C) any Event of Default
under the terms of this Agreement or any Reconstitution Agreement, (D) any
merger, consolidation or sale of substantially all of the assets of the
Servicer, and (E) the Servicer's entry into a material agreement after the
applicable closing date with a Subservicer to perform or assist in the
performance of any of the Servicer's obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or relationships.
(h) As a condition to the succession to the Servicer or any Subservicer
as a servicer or subservicer of at least 10% of the pool assets in a
Securitization Transaction or sub-pool thereof under the Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Servicer or any Subservicer, the Servicer shall provide to the
Purchaser, any Master Servicer, and any Depositor, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by 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.
(i) In addition to such information as the Servicer, as servicer, is
obligated to provide pursuant to other provisions of the Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Servicer or any Subservicer, 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 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);
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(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation
AB); and
(iii) information regarding any material pool asset changes
(such as additions, substitutions or repurchases) (Item 1121(a)(14) of
Regulation AB).
(j) The Servicer shall provide to the Purchaser, any Servicer and any
Depositor, upon request evidence of the authorization of the person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omissions Insurance policy, publicly available financial
information and reports, and such other information reasonably related to the
Servicer's or such Subservicer's performance hereunder.
(k) In the event that (i) the Servicer does not reasonably believe that
certain information requested under this Section 9.03 is required to be
disclosed pursuant to Regulation AB and (ii) the Servicer has not provided such
information for any of its own securitizations, the Purchaser shall pay all
reasonable documented costs incurred by the Servicer in connection with the
preparation and delivery of such information, and the Servicer shall promptly
deliver such information after expiration of a reasonable period of time for
establishing the necessary systems and procedures to produce such information.
Further, notwithstanding anything to the contrary herein, when determining if
information is required under Regulation AB, all threshold and other
requirements shall be determined solely by looking at the Servicer's mortgage
loans and those of its third-party originators. The Servicer shall have no
obligation with respect to disclosure or reporting under Regulation AB in the
event that the aggregation of its third-party originated Mortgage Loans with
those of the Purchaser's other sellers require additional disclosure; provided,
however, the Servicer shall otherwise cooperate with the Purchaser to provide
disclosure or reporting under Regulation AB in the event that such disclosure or
reporting is required under Regulation AB and not otherwise available to the
Purchaser.
Section 9.04 Servicer Compliance Statement.
On or before March 15 of each calendar year, commencing in 2007, the
Servicer shall deliver to the Purchaser, any Master Servicer and any Depositor a
statement of compliance addressed to the Purchaser, such Master Servicer and
such 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 the Agreement and any applicable Reconstitution 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 the Agreement and any applicable Reconstitution
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.
The statement of compliance required under this Section 9.04 shall be
provided by the Servicer in respect of its servicing of the Mortgage Loans
during calendar year 2006 notwithstanding the servicing transfer on the Transfer
Date.
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Section 9.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year when the Depositor is
required to file reports under the Exchange Act with respect to the related
Securitization Transaction commencing in 2007, the Servicer shall:
(i) deliver to the Purchaser, any Master Servicer and any
Depositor a report (in form and substance reasonably satisfactory to
the Purchaser, such Master Servicer and such 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 signed by an authorized officer of the Servicer, and
shall address each of the "Applicable Servicing Criteria" specified on
Exhibit J hereto;
(ii) deliver to the Purchaser, any Master Servicer and any
Depositor a report of a registered public accounting firm reasonably
acceptable to the Purchaser, such Master Servicer and such 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;
(iii) cause each Subservicer and each Subcontractor determined
by the Servicer pursuant to Section 9.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB to
deliver to the Purchaser, any Master Servicer and any 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) to provide, to the Purchaser, any Depositor,
any Master Servicer and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of the Servicer, in
the form attached hereto as Exhibit I.
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.
Neither the Purchaser nor any Depositor will request delivery of a certification
under clause (a)(iv) above unless a Depositor is required under the Exchange Act
to file an annual report on Form 10-K with respect to an issuing entity whose
asset pool includes Mortgage Loans.
All reports, assessments, attestations and certificates required under
this Section 9.05 shall be provided by the Servicer and each Subservicer and
Subcontractor in respect of its servicing of the Mortgage Loans during calendar
year 2006 notwithstanding the servicing transfer on the Transfer Date.
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(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 9.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit J hereto delivered to the
Purchaser concurrently with the execution of this Reg AB Addendum 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 9.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section 9.06.
Section 9.06 Use of Subservicers and Subcontractors.
(a) The Servicer shall not hire or otherwise utilize the services of
any Subservicer "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, to fulfill any of the obligations of the Servicer as
servicer under the Agreement or any Reconstitution 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
"participating in the Servicing function" within the meaning of Item 1122 of
Regulation AB, and shall not permit any Subservicer to hire or otherwise utilize
the services of any such Subcontractor to fulfill any of the obligations of the
Servicer as servicer under the Agreement or any Reconstitution Agreement unless
the Servicer complies with the provisions of paragraph (b) of this Section.
(b) It shall not be necessary for the Servicer to seek the consent of
the Purchaser, any Servicer or any 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 Purchaser and any Depositor to comply
with the provisions of this Section and with Sections 9.02, 9.03(c), (e), (f)
and (g), 9.04, 9.05 and 9.07 of this Servicing Agreement to the same extent as
if such Subservicer were the Servicer, to the extent required under Regulation
AB, and to provide the information required with respect to such Subservicer
under Section 9.03(d) of this Servicing Agreement. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Purchaser,
the Master Servicer and any Depositor any servicer compliance statement required
to be delivered by such Subservicer under Section 9.04 and Regulation AB, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 9.05 and Regulation AB and any certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 9.05 as and when required to be delivered under
Regulation AB.
(c) It shall not be necessary for the Servicer to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subcontractor. If required under Regulation AB, the Servicer shall promptly upon
request provide to the Purchaser, any Servicer and any Depositor (or any
designee of the Depositor, such as an administrator) a written description (in
form and substance reasonably satisfactory to the Purchaser, such Depositor and
such Servicer) of the role and function of each Subcontractor utilized by the
Servicer or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this paragraph.
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As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Purchaser, the Master
Servicer and any Depositor to comply with the applicable provisions of Sections
9.05 and 9.07 of this Servicing Agreement. The Servicer shall be responsible for
obtaining from each Subcontractor and delivering to the Purchaser and any
Depositor any assessment of compliance and attestation and the other
certifications required to be delivered by such Subservicer and such
Subcontractor under Section 9.05, in each case as and when required to be
delivered under Regulation AB.
Section 9.07 Indemnification; Remedies.
(a) The Servicer shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including, but not
limited to, any Master Servicer if applicable) responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; 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, a "Purchaser Indemnified Party"), and shall hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, reasonable 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
or other material provided under this Article IX by or on behalf of the
Servicer, or provided under this Article IX 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 IX, 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 IX, including any failure by the Servicer
to identify pursuant to Section 9.06(b) any Subcontractor
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB;
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(iii) any breach by the Servicer of a representation or
warranty set forth in Section 9.02(a) or in a writing furnished
pursuant to Section 9.02(b) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Servicer
of a representation or warranty in a writing furnished pursuant to
Section 9.02(b) to the extent made as of a date subsequent to such
closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in
the performance of the Servicer's duties, or by reason of reckless
disregard of obligations and duties, under this Article IX;
provided, however, that in no event, other than with respect to any
indemnification obligations of the Servicer relating to any Servicer Information
provided by the Servicer for inclusion in the any prospectus, prospectus
supplement, or any private placement memorandum, or in any amendment or
supplement thereto, in a Securitization Transaction, will the Servicer be liable
for any consequential or punitive damages pursuant to this Section 9.07, even if
advised of the possibility of such damages.
The Purchaser shall indemnify the Servicer, each Person who controls
the Servicer (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the respective present and former directors,
officers, employees, agents and affiliates of each of the foregoing (each, a
"Servicer Indemnified Party;" together with the Purchaser Indemnified Parties,
the "Indemnified Parties"), and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, reasonable 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 any untrue
statement contained or alleged to be contained in any filing with the Commission
or the omission or alleged omission to state in any filing with the Commission a
material fact required to be stated or necessary to be stated in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement, alleged untrue statement, omission, or alleged omission
arose out of or was based upon any information or statement, other than the
Servicer Information, in a filing with the Commission.
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.
In the case of any failure of performance described in clause (a)(ii)
of this Section, the Servicer shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required under Regulation
AB by the Servicer, any Subservicer or any Subcontractor.
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This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) 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 IX, or any breach by the Servicer of a representation or
warranty set forth in Section 9.02(a) or in a writing furnished
pursuant to Section 9.02(b) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Servicer
of a representation or warranty in a writing furnished pursuant to
Section 9.02(b) to the extent made as of a date subsequent to such
closing date, shall immediately and automatically, without notice or
grace period, constitute an Event of Default with respect to the
Servicer under the Agreement and any applicable Reconstitution
Agreement, and shall entitle the Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Servicer as
servicer under the Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement
or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Servicer (and if the Servicer is servicing any of
the Mortgage Loans in a Securitization Transaction, appoint a successor
servicer reasonably acceptable to any Master Servicer for such
Securitization Transaction); provided that to the extent that any
provision of the Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or
obligations following termination of the Servicer as servicer, such
provision shall be given effect. Neither the Purchaser, any Master
Servicer nor any Depositor shall be entitled to terminate the rights
and obligations of the Servicer pursuant to this subparagraph (b)(i) if
a failure of the Servicer to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation
AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(ii) The Servicer shall promptly reimburse the Purchaser (or
any designee of the Purchaser, such as a Master Servicer) and any
Depositor, as applicable, for all reasonable expenses incurred by the
Purchaser (or such designee) or such Depositor, as such are incurred,
in connection with the termination of the Servicer as servicer and the
transfer of servicing of the Mortgage Loans to a successor servicer.
The provisions of this paragraph shall not limit whatever rights the
Depositor may have under other provisions of the Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or
at law, such as an action for damages, specific performance or
injunctive relief.
Section 9.08 Third-Party Beneficiary.
For purposes of this Article IX and any related provisions thereto,
each Master Servicer and the Trustee shall be considered third-party
beneficiaries of this Reg AB Addendum, entitled to all the rights and benefits
hereof as if it were a direct party to Article IX of this Agreement.
-43-
IN WITNESS WHEREOF, the Servicer, the Master Servicer, the
Securities Administrator and the Seller have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
GMAC MORTGAGE CORPORATION, as
Servicer
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MAIA MORTGAGE FINANCE STATUTORY
TRUST, as Seller
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
XXXXX FARGO BANK, N.A., as Master Servicer
and Securities Administrator
By: /s/ Xxx Xxxxx
-------------
Name: Xxx Xxxxx
Title: Vice President
Agreed to and acknowledged by:
HSBC BANK USA, NATIONAL ASSOCIATION
not in its individual capacity, but solely
as Trustee for Luminent Mortgage Trust 2006-6
under the Pooling Agreement
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
[INTERIM SERVICING AGREEMENT]
EXHIBIT A
[Reserved]
EXHIBIT B
[Reserved]
EXHIBIT C
[Reserved]
EXHIBIT D
[RESERVED]
EXHIBIT E
Form of Periodic Reports
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 Text up to 10 digits 10
each 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 file. Maximum length of 30 (Last, First) 30
It is not separated by first and last name.
----------------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a 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 the service fee 4 Max length of 6 6
rate as reported by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan as reported 4 Max length of 6 6
by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
----------------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
----------------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to calculate 4 Max length of 6 6
a forecasted rate.
----------------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the beginning of the processing cycle.
----------------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the end of the processing cycle.
----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
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 applied. 2 No commas(,) or dollar signs ($) 11
----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_1 The curtailment interest on the first c 2 No commas(,) or dollar signs ($) 11
urtailment amount, if applicable.
----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) or dollar signs ($) 11
be applied.
----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the third curtailment amount.
----------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
----------------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported by MM/DD/YYYY 10
the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
----------------------------------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code used to Action Code Key; 15=Bankruptcy, 2
indicate the default/delinquent 30=Foreclosure, 60=PIF,
status of a particular loan. 63=Substitution, 65=Repurchase,
70=REO
----------------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest adjustment 2 No commas(,) or dollar signs ($) 11
as reported by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
----------------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, 2 No commas(,) or dollar signs ($) 11
if applicable.
----------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or dollar signs ($) 11
as a loss, if applicable.
----------------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the cycle
date to be passed through to investors.
----------------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a
processing cycle.
----------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the
current cycle -- only applicable
for Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the
current cycle as reported by the
Servicer -- only applicable for
Scheduled/Scheduled Loans.
----------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected 2 No commas(,) or dollar signs ($) 11
by the Servicer for the current
reporting cycle -- only applicable
for Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the
current reporting cycle as reported by
the Servicer -- only applicable for
Actual/Actual Loans.
----------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_AMT The penalty amount received when 2 No commas(,) or dollar signs ($) 11
a borrower prepays on his loan as
reported by the Servicer.
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
----------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs ($) 11
the loan waived by the servicer.
----------------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
----------------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
----------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs ($) 11
and interest advances made
by Servicer.
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT : STANDARD FILE LAYOUT - DELINQUENCY REPORTING
----------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan
by the Servicer. This may be
different than the LOAN_NBR
----------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to
each loan by the originator.
----------------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
----------------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as
assigned by an external servicer
to identify a group of loans in
their system.
----------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------------------------------
BORROWER_LAST-NAME Last name of the borrower.
----------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
----------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
----------------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
----------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer
MM/DD/YYYY 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 MM/DD/YYYY
claim was filed.
----------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the
bankruptcy was filed.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the
court to the bankruptcy filing.
----------------------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the MM/DD/YYYY
bankruptcy has been approved by
the courts
----------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed MM/DD/YYYY
From Bankruptcy. 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 Servicer MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation
Approved For A Loan Such As;
----------------------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan MM/DD/YYYY
Is Scheduled To End/Close
----------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation MM/DD/YYYY
Is Actually Completed
----------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter MM/DD/YYYY
to the servicer with instructions
MM/DD/YYYY to begin foreclosure
proceedings.
----------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney MM/DD/YYYY
to Pursue Foreclosure
----------------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an MM/DD/YYYY
Attorney in a Foreclosure Action
----------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure MM/DD/YYYY
sale is expected to occur.
----------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure MM/DD/YYYY
sale.
----------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for 2 No commas(,) or dollar signs($)
at the foreclosure sale.
----------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates MM/DD/YYYY
eviction of the borrower.
----------------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from
MM/DD/YYYY the borrower.
----------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO 2 No commas(,) or dollar signs ($)
property is marketed.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed MM/DD/YYYY
at a particular price.
----------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer 2 No commas(,) or dollar signs ($)
for an REO property.
----------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by MM/DD/YYYY
DA Admin or by the Servicer.
----------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the MM/DD/YYYY
property is scheduled 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 MM/DD/YYYY
is performed.
----------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price
opinion or appraisal.
----------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be 2
worth if repairs are completed 2
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 MM/DD/YYYY
Was Filed With Mortgage Insurance
Company.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance No commas(,) or dollar signs ($)
Claim Filed
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance 2 No commas(,) or dollar signs ($)
Company Paid On Claim
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With MM/DD/YYYY
Pool Insurance Company
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With 2 No commas(,) or dollar signs ($)
Pool Insurance Company
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The MM/DD/YYYY
Check Was Issued By The
Pool Insurer
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool 2 No commas(,) or dollar signs ($)
Insurance Company
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was MM/DD/YYYY
Filed With HUD
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A MM/DD/YYYY
Claim Payment
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was MM/DD/YYYY
Filed With HUD
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B MM/DD/YYYY
Claim Payment
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED-DATE Date VA Claim Was Filed MM/DD/YYYY
With the Veterans Admin
----------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. MM/DD/YYYY
Disbursed VA Claim Payment
----------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. 2 No commas(,) or dollar signs ($)
Paid on VA Claim
----------------------------------------------------------------------------------------------------------------------
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
---------------------------------------------------------------------------------------------------
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------------------------------------------------------------------------------------------
001 FNMA-Death of principal mortgagor
---------------------------------------------------------------------------------------------------
002 FNMA-Illness of principal mortgagor
---------------------------------------------------------------------------------------------------
003 FNMA-Illness of mortgagor's family member
---------------------------------------------------------------------------------------------------
004 FNMA-Death of mortgagor's family member
---------------------------------------------------------------------------------------------------
005 FNMA-Marital difficulties
---------------------------------------------------------------------------------------------------
006 FNMA-Curtailment of income
---------------------------------------------------------------------------------------------------
007 FNMA-Excessive Obligation
---------------------------------------------------------------------------------------------------
008 FNMA-Abandonment of property
---------------------------------------------------------------------------------------------------
009 FNMA-Distant employee transfer
---------------------------------------------------------------------------------------------------
011 FNMA-Property problem
---------------------------------------------------------------------------------------------------
012 FNMA-Inability to sell property
---------------------------------------------------------------------------------------------------
013 FNMA-Inability to rent property
---------------------------------------------------------------------------------------------------
014 FNMA-Military Service
---------------------------------------------------------------------------------------------------
015 FNMA-Other
---------------------------------------------------------------------------------------------------
016 FNMA-Unemployment
---------------------------------------------------------------------------------------------------
017 FNMA-Business failure
---------------------------------------------------------------------------------------------------
019 FNMA-Casualty loss
---------------------------------------------------------------------------------------------------
022 FNMA-Energy environment costs
---------------------------------------------------------------------------------------------------
023 FNMA-Servicing problems
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
026 FNMA-Payment adjustment
---------------------------------------------------------------------------------------------------
027 FNMA-Payment dispute
---------------------------------------------------------------------------------------------------
029 FNMA- Transfer of ownership pending
---------------------------------------------------------------------------------------------------
030 FNMA-Fraud
---------------------------------------------------------------------------------------------------
031 FNMA-Unable to contact borrower
---------------------------------------------------------------------------------------------------
INC FNMA-Incarceration
---------------------------------------------------------------------------------------------------
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
---------------------------------------------------------------------------------------------------
STATUS CODE STATUS DESCRIPTION
---------------------------------------------------------------------------------------------------
09 Forbearance
---------------------------------------------------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
---------------------------------------------------------------------------------------------------
24 Government Seizure
---------------------------------------------------------------------------------------------------
26 Refinance
---------------------------------------------------------------------------------------------------
27 Assumption
---------------------------------------------------------------------------------------------------
28 Modification
---------------------------------------------------------------------------------------------------
29 Charge-Off
---------------------------------------------------------------------------------------------------
30 Third Party Sale
---------------------------------------------------------------------------------------------------
31 Probate
---------------------------------------------------------------------------------------------------
32 Military Indulgence
---------------------------------------------------------------------------------------------------
43 Foreclosure Started
---------------------------------------------------------------------------------------------------
44 Deed-in-Lieu Started
---------------------------------------------------------------------------------------------------
49 Assignment Completed
---------------------------------------------------------------------------------------------------
61 Second Lien Considerations
---------------------------------------------------------------------------------------------------
62 Veteran's Affairs-No Bid
---------------------------------------------------------------------------------------------------
63 Veteran's Affairs-Refund
---------------------------------------------------------------------------------------------------
64 Veteran's Affairs-Buydown
---------------------------------------------------------------------------------------------------
65 Chapter 7 Bankruptcy
---------------------------------------------------------------------------------------------------
66 Chapter 11 Bankruptcy
---------------------------------------------------------------------------------------------------
67 Chapter 13 Bankruptcy
---------------------------------------------------------------------------------------------------
EXHIBIT: CALCULATION OF REALIZED LOSS/GAIN FORM 332-INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE REPORT
DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL THE FOLLOWING
MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING LOSS APPROVAL
AND/OR RESOLUTION OF ANY DISPUTED ITEMS.
(i) 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:
o 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.
o For escrow advances - complete payment history (to calculate advances from
last positive escrow balance forward)
o Other expenses - copies of corporate advance history showing all payments
o REO repairs> $1500 require explanation
o REO repairs >$3000 require evidence of at least 2 bids.
o Short Sale or Charge Off require P&L supporting the decision and WFB's
approved Officer Certificate
o Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
(ii) Credits:
14-21. Complete as applicable. Required documentation:
o Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions
and Escrow Agent / Attorney
o Letter of Proceeds Breakdown.
o Copy of EOB for any MI or gov't guarantee
o 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 show the amount in parenthesis (________).
EXHIBIT 3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: Date:
-------------------- -------------------
Phone: Email Address:
-------------------------- -------------------
--------------------- ----------------- --------------------
Servicer Loan No. Servicer Name Servicer Address
--------------------- ----------------- --------------------
XXXXX FARGO BANK, N.A. LOAN NO. ________________________________________
Borrower's Name: _________________________________________________________
Property Address: ________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cram down amount __________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ _________ (1)
(2) Interest accrued at Net Rate _________ (2)
(3) Accrued Servicing Fees _________ (3)
(4) Attorney's Fees _________ (4)
(5) Taxes (see page 2) _________ (5)
(6) Property Maintenance _________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) _________ (7)
(8) Utility Expenses _________ (8)
(9) Appraisal/BPO _________ (9)
(10) Property Inspections _________ (10)
(11) FC Costs/Other Legal Expenses _________ (11)
(12) Other (itemize) _________ (12)
Cash for Keys _________ (12)
HOA/Condo Fees _________ (12)
__________________ _________ (12)
TOTAL EXPENSES $ _________ (13)
CREDITS:
(14) Escrow Balance $ _________ (14)
(15) HIP Refund _________ (15)
(16) Rental Receipts _________ (16)
(17) Hazard Loss Proceeds _________ (17)
(18) Primary Mortgage Insurance/Gov't
Insurance HUD Part A _________ (18a)
HUD Part B _________ (18b)
(19) Pool Insurance Proceeds _________ (19)
(20) Proceeds from Sale of Acquired Property _________ (20)
(21) Other (itemize) _________ (21)
___________________________________________ _________
TOTAL CREDITS $ _________ (22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $ _________ (23)
Escrow Disbursement Detail
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
TYPE DATE PAID PERIOD OF TOTAL PAID BASE PENALTIES INTEREST
(TAX/INS.) COVERAGE AMOUNT
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
EXHIBIT F
FORM OF CERTIFICATION
-----------, ------
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
[Address of Custodian]
Re: Series - - Assignment of Mortgage Loan
--------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
assignment by _________________ (the "Trustee") to [ - ] (the "Lender") of (the
"Mortgage Loan") pursuant to Section 3.11(d) of the Interim Servicing Agreement
(the "Servicing Agreement"), dated as of ____________________, among GMAC
Mortgage Corporation, as Servicer (the "Servicer"), Xxxxx Fargo Bank, N.A., as
the Master Servicer and the securities administrator, and Maia Mortgage Finance
Statutory Trust, as Seller. All terms used herein and not otherwise defined
shall have the meanings set forth in the Servicing Agreement. The Lender hereby
certifies, represents and warrants to, and covenants with, the Servicer and the
Custodian that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely to
comply with, or facilitate the transaction under, such local laws;
(iii) the Mortgage Loan following the proposed assignment will be
modified to have a rate of interest at least 0.25 percent below or above the
rate of interest on such Mortgage Loan prior to such proposed assignment; and
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
(Lender)
By:
--------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT G
FORM OF REQUEST FOR RELEASE
DATE:
TO:
Re: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage File described
below.
Sale and Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
Mortgage Loan in Foreclosure
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Servicing Agreement."
_______________________________________
GMAC Mortgage Corporation
Authorized Signature
_______________________________________________________________________________
TO CUSTODIAN: Please acknowledge this request, and check off documents being
enclosed with a copy of this form. You should retain this form for your files in
accordance with the terms of the Sale and Servicing Agreement.
Enclosed Documents: |_| Promissory Note
|_| Primary Insurance Policy
|_| Mortgage or Deed of Trust
|_| Assignment(s) of Mortgage or Deed of Trust
|_| Title Insurance Policy
|_| Other:
Name ________________________
Date ________________________
Title _______________________
2
EXHIBIT H
FORM OF BACK-UP
[Reserved]
3
EXHIBIT I
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _____________________
of [NAME OF SERVICER] (the "Servicer"), 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 the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and identified as
the responsibility of the Servicer on Exhibit G to the Regulation AB Compliance
Addendum to the Agreement (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 Servicer during 200[ ] that were delivered by the
Servicer to the [Depositor] [Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the "Servicer Servicing Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been provided to
the [Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the
Servicer 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 Servicer has fulfilled its obligations under the
Agreement in all material respects; and
4
(5) The Compliance Statement required to be delivered by the Servicer
pursuant to this Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Servicer and by any Subservicer and Subcontractor
pursuant to the Agreement, have been provided to the [Depositor] [Servicer]. Any
material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Servicer]. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date:
------------------------------------
By:
--------------------------------------
Name:
Title:
5
EXHIBIT J
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Servicer]
shall address, at a minimum, the criteria identified below as "Applicable
Servicing Criteria";
----------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
X
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to X
monitor the third party's performance and compliance with
such servicing activities.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the mortgage loans are maintained.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing X
function throughout the reporting period in the amount of
coverage required by and otherwise in accordance with the
terms of the transaction agreements.
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CASH COLLECTION AND ADMINISTRATION
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank X
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized X
personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees X
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the X
transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign X
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1 (b)(1) of the
Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement X
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.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms X
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.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and X
other terms set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction X
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or X
custodial bank statements.
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POOL ASSET ADMINISTRATION
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related X
mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any X
conditions or requirements in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number X
of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan
documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's X
unpaid principal balance.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) X
are made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure, X
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records X
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on X
the related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is X
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.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided X
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the X
late payment was due to the obligor's error or omission.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records X
maintained by the servicer, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction X
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in X
Item 1114(a)(1) through (3) or Item 1115 of Regulation if obligated
AB, is maintained as set forth in the transaction under
agreements. transaction
documents
----------------------------------------------------------------------------------------------------------------------
EXHIBIT K
SPECIAL FORECLOSURE RIGHTS SECTION
Notwithstanding anything in this Agreement to the contrary, for so long as the
Master Servicer has not notified the Servicer that a real estate investment
trust or one of its subsidiaries and is no longer the holder of the entire
interest in the most junior of the Subordinate Certificates is no longer
entitled to the rights described in this Section:
(a) The Servicer shall not commence foreclosure proceedings with respect to a
Mortgage Loan unless (i) no later than five Business Days prior to its
commencement of such foreclosure proceedings, it notifies the Master Servicer of
its intention to do so, and (ii) the holder of the entire interest in the most
junior of the Subordinate Certificates, either directly or through the Servicer,
does not, within such five-Business-Day period, affirmatively object to such
action.
(b) In the event that the Servicer determines not to proceed with foreclosure
proceedings with respect to a Mortgage Loan that becomes 60 days' or more
delinquent and the Servicer has determined that it is unable to collect payments
due under such Mortgage Loan in accordance with Accepted Servicing Practices,
the Servicer shall, prior to taking any action with respect to such Mortgage
Loan, promptly provide the Master Servicer with notice of such determination and
a description of such other action as it intends to take with respect to such
Mortgage Loan; provided, that the Servicer shall not be permitted to proceed
with any such action unless the holder of the entire interest in the most junior
of the Subordinate Certificates, either directly or through the Master Servicer,
does not, within five Business Days following such notice, affirmatively object
to the Servicer taking such action.
(c) If the holder of the entire interest in the most junior of the Subordinate
Certificates timely and affirmatively objects to an action or contemplated
action of the Servicer pursuant to either (a) or (b) above, then such holder
shall instruct the Master Servicer to hire, at such holder's sole cost and
expense, three appraisal firms, selected by the Master Servicer in its
reasonable discretion, to compute the fair value of the Mortgaged Property
relating to the related Mortgage Loan utilizing the Xxxxxx Xxx Form 2055
Exterior-Only Inspection Residential Appraisal Report (each such appraisal-firm
computation, a "FAIR VALUE PRICE"), in each case (other than as set forth in (d)
below) no later than 30 days from the date of such holder's objection. If the
Master Servicer shall have received three Fair Value Prices by the end of such
30-day period, then the holder of the entire interest in the most junior of the
Subordinate Certificates shall, no later than 5 days after the expiration of
such 30-day period, purchase such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (i) accrued and unpaid interest on
such Mortgage Loan as of such purchase date ("ACCRUED INTEREST") and (ii) the
highest of such three Fair Value Prices respectively determined by such
appraisal firms, and shall promptly delivery such amount to the Servicer for
deposit into the Custodial Account. All costs relating to the computation of the
related Fair Value Prices shall be (x) set forth in an invoice delivered by the
Master Servicer, (y) for the account of the holder of the entire interest in the
most junior of the Subordinate Certificates and (z) paid to the Master Servicer
in immediately available funds by the holder of the entire interest in the most
junior of the Subordinate Certificates at the time of such Mortgage Loan and the
related Mortgaged Property are purchased by such holder.
(d) If the Master Servicer shall not have received three Fair Value Prices at
the end of the 30-day period set forth in (c) above, then:
(i) The Master Servicer shall obtain such three Fair Value
Prices no later than 15 days after the end of such 30-day period.
(ii) If the Master Servicer shall have only received two Fair
Value Prices at the end of such 15-day extension period, then the
Master Servicer will determine, in its sole and absolute discretion,
the fair value of the Mortgaged Property relating to such Mortgage
Loan, related Insurance Proceeds and the current delinquency status of
such Mortgage Loan (such fair value, the "MASTER SERVICER FAIR VALUE
PRICE"), and the holder of the entire interest in the most junior of
the Subordinate Certificates shall, no later than 5 days after the
expiration of such 15-day extension period, purchase (and deliver to
the Servicer the purchase price for) such Mortgage Loan and the related
Mortgaged Property at an amount equal to the sum of (A) Accrued
Interest thereon and (B) the higher of (1) the highest of such two Fair
Value Prices determined by such appraisal firms and (2) the Master
Servicer Fair Value Price.
(iii) If the Master Servicer shall have received only one Fair
Value Price at the end of such 15-day extension period, then the Master
Servicer will determine, in its sole and absolute discretion, the
Master Servicer Fair Value Price of the Mortgaged Property related to
such Mortgage Loan, and:
if such Master Servicer Fair Value Price is equal to
or greater than the unpaid principal balance of the related
Mortgage Loan as of such date (the "UNPAID PRINCIPAL
BALANCE"), then the holder of the entire interest in the most
junior of the Subordinate Certificates shall, no later than 5
days after the expiration of such 15-day extension period,
purchase (and deliver to the Servicer the purchase price for)
such Mortgage Loan and the related Mortgaged Property at an
amount equal to the sum of (1) Accrued Interest thereon and
(2) such Master Servicer Fair Value Price; and
if such Master Servicer Fair Value Price is less than
the related Unpaid Principal Balance, then the holder of the
entire interest in the most junior of the Subordinate
Certificates shall, no later than 5 days after the expiration
of such 15-day extension period, purchase (and deliver to the
Servicer the purchase price for) such Mortgage Loan and the
related Mortgaged Property at an amount equal to the sum of
(1) Accrued Interest thereon and (2) the related Unpaid
Principal Balance (such sum, the "PRELIMINARY PURCHASE
PRICE"); provided, that the provisions of clause (d)(iv) shall
thereafter apply.
(iv) Following the payment by the holder of the entire
interest in the most junior of the Subordinate Certificates of the
Preliminary Purchase Price, the Master Servicer shall continue to hire
appraisal firms at the holder of the entire interest in the most junior
of the Subordinate Certificates' sole cost and expense (which shall be
payable by the holder of the entire interest in the most junior of the
Subordinate Certificates to the Master Servicer in immediately
available funds promptly upon the delivery to it by the Master Servicer
of an invoice with respect thereto) to compute the Fair Value Price of
the Mortgaged Property related to such Mortgage Loan, and at such time
as two such Fair Value Prices shall have been obtained:
if such Master Servicer Fair Value Price is equal to
or greater than the unpaid principal balance of the related
Mortgage Loan as of such date (the "UNPAID PRINCIPAL
BALANCE"), then the holder of the entire interest in the most
junior of the Subordinate Certificates shall, no later than 5
days after the expiration of such 15-day extension period,
purchase (and deliver to the Servicer the purchase price for)
such Mortgage Loan and the related Mortgaged Property at an
amount equal to the sum of (1) Accrued Interest thereon and
(2) such Master Servicer Fair Value Price; and
if the sum of (1) Accrued Interest on the related
Mortgage Loan and (2) the higher of (x) the highest of such
two Fair Value Prices determined by such appraisal firms and
(y) the Master Servicer's Fair Value Price of the Mortgaged
Property related to such Mortgage Loan (such sum, the "REVISED
FAIR VALUE PRICE") is greater than such Preliminary Purchase
Price, then the Master Servicer shall promptly notify the
holder of the entire interest in the most junior of the
Subordinate Certificates and the Servicer of such calculation,
and such holder shall, no later than 5 days after such notice,
remit to the Servicer, for deposit into the Custodial Account,
the difference between such Revised Fair Value Price and such
Preliminary Purchase Price; and
if such Preliminary Purchase Price is greater than
such Revised Fair Value Price, then the Master Servicer shall
promptly notify the holder of the entire interest in the most
junior of the Subordinate Certificates and the Servicer of
such calculation, and the Servicer shall, no later than 5 days
after such notice, remit to such holder, from funds then on
deposit in the Custodial Account, the difference between such
Preliminary Purchase Price and such Revised Fair Value Price.
(e) Notwithstanding anything herein to the contrary, the holder of the entire
interest in the most junior of the Subordinate Certificates shall not be
entitled to any of its rights set forth herein with respect to a Mortgage Loan
following its failure to purchase such Mortgage Loan and the related Mortgaged
Property, at the related purchase price set forth in this Section within the
timeframe set forth in this Section following such holder's objection to an
action of the Servicer, and the Servicer shall provide the Master Servicer
written notice of such failure. Moreover, the holder of the entire interest in
the most junior of the Subordinate Certificates shall not be entitled to the
foregoing rights if any of the Subordinate Certificates are held by entities
that are unaffiliated with such holder.
(f) Any notice, confirmation, instruction or objection pursuant to paragraphs
(a), (b), (c) and (d) above may be delivered via facsimile or other written or
electronic communication as the parties hereto and the holder of the entire
interest in the most junior of the Subordinate Certificates may agree to from
time to time.
(g) For the avoidance of doubt, the holder of the entire interest in the most
junior of the Subordinate Certificates' rights set forth in this Section are
intended to provide such holder, for so long as it has not forfeited its right
under this Section as set forth in clause (e) above, with the unilateral right
to control foreclosure decisions in respect of delinquent and defaulted Mortgage
Loans, and certain exclusive purchase rights so as to maximize the recovery
value on delinquent and defaulted Mortgage Loans.
(h) The holder of the entire interest in the most junior of the Subordinate
Certificates as of the Closing Date is MAIA Mortgage Finance Statutory Trust.
Any notice delivered by such holder (or any other holder of the entire interest
in the most junior of the Subordinate Certificates), either directly or through
the Master Servicer, shall be accompanied by an officer's certificate of such
holder certifying to the Servicer that it is the holder of the entire interest
in the most junior of the Subordinate Certificates and shall attach thereto (A)
if the Subordinate Certificate is registered in the name of a nominee of the
Depository Trust Servicer, an account statement through the applicable
broker-dealer or such other evidence as the Servicer shall reasonably request or
(B) if the Subordinate Certificate is held in physical form, the trade
confirmation with respect to such Subordinate Certificate or such other evidence
as the Servicer shall reasonably request. For purposes of this Section, the
Servicer shall be entitled to rely on any notice delivered by the Seller until a
notice (together with an officer's certificate and the supporting evidence of
ownership set forth in the immediately preceding sentence) is delivered to the
Servicer by any subsequent holder of the entire interest in the most junior of
the Subordinate Certificates.
(i) To the extent that the holder of the entire interest in the most junior of
the Subordinate Certificates purchases any Mortgage Loan pursuant to this
Section, the Servicer will continue to service such Mortgage Loan in accordance
with this Agreement. The parties acknowledge that, in such event, the Master
Servicer will have no duty or responsibility to master service any such Mortgage
Loan.
Schedule 1
MORTGAGE LOAN SCHEDULE
[For each Mortgage Loan, should identify at least the related (a) Gross Margin,
(b) Index, (c) Maximum Interest Rate, (d) Minimum Interest Rate, (e) current
Mortgage Interest Rate, and (f) Mortgage Loan Remittance Rate.]
To be retained in a separate closing binder entitled "Luminent 2006-6 Mortgage
Loan Schedule" at the Washington DC offices of Hunton & Xxxxxxxx LLP.
