EXHIBIT 99.7
RECONSTITUTED SERVICING AGREEMENT
This is a Reconstituted Servicing Agreement (the "Agreement") made
this 1st day of March, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc.,
having an address at 4 World Financial Center, 10th Floor, New York, New York
10281 (the "Depositor") and Wilshire Credit Corporation, having an address at
00000 XX Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000 ("Wilshire").
In consideration of the mutual promises contained herein the parties
hereto agree that the mortgage loans (the "Mortgage Loans") listed on Exhibit A
annexed hereto (the "Mortgage Loan Schedule") shall be subject to the terms of
this Agreement, and shall be serviced under the terms of the pooling and
servicing agreement dated as of January 1, 2006, among the Depositor, Wilshire
and Xxxxx Fargo Bank, N.A. (the "Underlying Servicing Agreement"), attached
hereto as Exhibit B, and as amended by this Agreement (together with the
Underlying Servicing Agreement, the "Servicing Agreement"). Capitalized terms
used herein but not defined shall have the meanings ascribed to them in the
Underlying Servicing Agreement.
MODIFICATIONS OF CERTAIN PROVISIONS OF THE UNDERLYING SERVICING AGREEMENT
1. The parties hereto agree that the Preliminary Statement, Article II
(other than Section 2.09), Sections 3.17, 3.18, 3.20-3.23 and 4.03 through 4.05,
Article V, Section 7.03, Article VIII, Article IX and Sections 10.04, 10.05,
10.08, 10.10 and 10.11 are inapplicable to this Agreement.
2. For purposes of servicing the Mortgage Loans hereunder, the parties
hereto agree that the provisions of the Underlying Servicing Agreement shall be
modified in the manner set forth on Exhibit C hereto.
WARRANTIES
3. Depositor warrants and represents to, and covenants with, Wilshire
that as of the date hereof:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
(b) Depositor has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of Depositor's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Depositor's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Depositor is now a party or by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Depositor or its property is subject. The execution,
delivery and performance by Depositor of this
Agreement and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on part of
Depositor. This Agreement has been duly executed and delivered by Depositor and,
upon the due authorization, execution and delivery by Wilshire, will constitute
the valid and legally binding obligation of Depositor enforceable against
Depositor in accordance with its terms except as enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is considered in a
proceeding in equity or at law; and
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by Depositor in connection with the execution, delivery or performance
by Depositor of this Agreement, or the consummation by it of the transactions
contemplated hereby.
4. Wilshire warrants and represents to, and covenants with, Depositor
that as of the date hereof:
(a) Wilshire is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) Wilshire has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of Wilshire's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Wilshire's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Wilshire is now a party or by which it
is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Wilshire or its property is subject. The execution,
delivery and performance by Wilshire of this Agreement and the consummation by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of Wilshire. This Agreement has been duly
executed and delivered by Wilshire and, upon the due authorization, execution
and delivery by Depositor, will constitute the valid and legally binding
obligation of Wilshire enforceable against Wilshire in accordance with its terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law; and
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by Wilshire in connection with the execution, delivery or performance by
Wilshire of this Agreement, or the consummation by it of the transactions
contemplated hereby.
(d) Wilshire is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Servicer in any
state in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such
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qualification and, in any event, is in compliance with the doing business laws
of any such state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to service the Mortgage Loans in accordance with the terms of
this Agreement and to perform any of its other obligations under this Agreement
in accordance with the terms hereof.
(e) The Servicer is an approved servicer of mortgage loans for Xxxxxx
Mae and is an approved servicer of mortgage loans for Xxxxxxx Mac.
(f) No litigation is pending or, to the best of the Servicer's
knowledge, threatened, against the Servicer that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of the Servicer to service the Mortgage Loans or to perform any of its
other obligations under this Agreement in accordance with the terms hereof.
(g) The Servicer will fully furnish (for the period it services the
Mortgage Loans), in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company on a monthly basis.
RECOGNITION OF MASTER SERVICER
5. From and after the date hereof, Wilshire shall service the Mortgage
Loans in accordance with the Servicing Agreement. It is the intention of
Wilshire and the Depositor that this Agreement will constitute a separate and
distinct servicing agreement between Wilshire and Depositor to the extent of the
Mortgage Loans and shall be binding upon and for the benefit of the respective
successors and assigns of the parties hereto.
6. Wilshire acknowledges that Xxxxx Fargo Bank, N.A. (the "Master
Servicer" and "Securities Administrator") has been appointed as the master
servicer of the Mortgage Loans pursuant to the Pooling and Servicing Agreement,
dated as of March 1, 2007, by and among the Depositor, the Master Servicer, the
Securities Administrator and HSBC Bank USA, National Association (the "Pooling
and Servicing Agreement"). Wilshire shall deliver all reports required to be
delivered under the Servicing Agreement to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
7. Wilshire hereby acknowledges that the Master Servicer has the right
to enforce all obligations of Wilshire under the Servicing Agreement acting on
behalf of the MANA 2007-F1 trust formed pursuant to the Pooling and Servicing
Agreement, as owner of the Mortgage Loans. Such rights will include, without
limitation, the right to terminate Wilshire, as servicer under the Servicing
Agreement upon the occurrence of an event of default thereunder, the right to
receive
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all remittances required to be made by Wilshire under the Servicing Agreement,
the right to receive all monthly reports and other data required to be delivered
by Wilshire under the Servicing Agreement, the right to examine the books and
records of Wilshire and the right to exercise certain rights of consent and
approval of the "Trustee" under the Servicing Agreement. Notwithstanding the
foregoing, it is understood that Wilshire shall not be obligated to defend and
indemnify and hold harmless the Master Servicer and the Depositor from and
against any losses, damages, penalties, fines, forfeitures, judgments and any
related costs including, without limitation, reasonable and necessary legal
fees, resulting from (i) actions or inactions of Wilshire which were taken or
omitted upon the instruction or direction of the Master Servicer or (ii) the
failure of the Master Servicer to perform the obligations of the "Trustee" under
the Servicing Agreement and this Agreement only to the extent that the Master
Servicer has any obligations of the "Trustee". In addition, the Depositor shall
indemnify Wilshire and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that Wilshire
may sustain in any way related to (a) actions or inactions of Wilshire which
were taken or omitted upon the instruction or direction of the Securities
Administrator or Master Servicer, as applicable, or (b) the failure of the
Securities Administrator or the Master Servicer, as applicable, to perform the
obligations of the "Trustee" under the Servicing Agreement. Wilshire shall make
all distributions under the Servicing Agreement to the Master Servicer by wire
transfer of immediately available funds to:
Xxxxx Fargo Bank, N.A.
ABA Number: #000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: MANA 2007-F1
Distribution Account Number: 00000000
MISCELLANEOUS
8. All demands, notices and communications related to the Mortgage
Loans, this Servicing Agreement shall be in writing and shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid, as follows:
(a) In the case of Wilshire,
Wilshire Credit Corporation
00000 X.X. Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attention: V.P. Client Services
(b) In the case of Depositor,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
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4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MANA 2007-F1
(c) In the case of the Master Servicer or the Securities
Administrator,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MANA 2007-F1
9. This Agreement shall be construed in accordance with the laws of
the State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
11. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Depositor or Wilshire
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Depositor or Wilshire, respectively, hereunder.
12. This Agreement shall terminate upon a clean up call of the Xxxxxxx
Xxxxx Alternative Note Asset Trust, Series 2007-F1.
13. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
WILSHIRE CREDIT CORPORATION
Company
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXX FARGO BANK, N.A.
Securities Administrator
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
POOLING AND SERVICING AGREEMENT,
DATED JANUARY 1, 2006
B-1
EXHIBIT C
MODIFICATIONS TO THE UNDERLYING SERVICING AGREEMENT
1. Article I (Definitions) is hereby modified as follows:
a. Replacing the definition of Accountant's Attestation in its
entirety with the following:
Accountant's Attestation: A report from a nationally or
regionally recognized firm of independent registered public
accountants which is a member of the American Institute of
Certified Public Accountants to the effect that (i) it has
obtained a representation regarding certain matters from the
management of the Servicer, which includes an assertion as to
whether the Servicer has complied with the relevant Servicing
Criteria, and (ii) on the basis of an examination conducted by
such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether the Servicer's compliance with the relevant
Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding the Servicer's
assessment of compliance with the Relevant Servicing Criteria.
b. Adding the following definition immediately after the definition
of Agreement:
Annual Statement of Compliance: The statement of compliance as
required by Section 11.04 of Exhibit D hereto.
c. Replacing the definition of Assessment of Compliance in its
entirety with the following:
Assessment of Compliance: An officer's assessment of its
compliance with the Relevant Servicing Criteria during the
preceding calendar year as required by Rules 13a-18 and 15d-18 of
the Exchange Act and Item 1122 of Regulation AB.
d. Revising the definition of Certificate by replacing the word
"Trustee" with "Securities Administrator" in each instance.
e. Replacing the definition of Certificateholder or Holder in its
entirety with the following:
Certificateholder or Holder: As defined in the Pooling and
Servicing Agreement.
f. Replacing the definition of Closing Date in its entirety with the
following:
Closing Date: March 26, 2007.
g. Revising the definition of Collection Account by (i) replacing
the words "Mortgage Investors" with "Alternative Note" and (ii)
replacing "2006-HE1" with "2007-F1".
h. Replacing the definition of Cut-off Date in its entirety with the
following:
Cut-off Date: March 1, 2007.
i. Adding the following definition immediately following the
definition of Certificate:
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator and as defined in the
Pooling and Servicing Agreement.
j. Revising the definition of Distribution Date by replacing "2006"
with "2007".
k. Replacing the definition of Issuing Entity in its entirety with
the following:
Issuing Entity: Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-F1.
l. Adding the following definitions immediately after the definition
of Lower Tier REMIC Subordinated Balance Ratio:
Master Servicer: Xxxxx Fargo Bank, N.A.
Master Servicer Collection Account: The separate Eligible Account
created and maintained by the Master Servicer pursuant to the
Pooling and Servicing Agreement in the name of the Master
Servicer for the benefit of the Certificateholders and designated
"Xxxxx Fargo Bank, N.A., as Master Servicer, in trust for
registered holders of Xxxxxxx Xxxxx Alternative Note Asset Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-F1." Funds
in the Master Servicer Collection Account shall be held in trust
for the Certificateholders for the uses and purposes set forth in
the Pooling and Servicing Agreement.
m. Revising the definition of Mortgage Loan Schedule by replacing
"attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit B-3"
with the following: "attached to the Reconstituted Servicing
Agreement".
n. Revising the definition of Optional Termination Amount by
replacing "Section 9.01" with "the Pooling and Servicing
Agreement".
o. Revising the definition of Optional Termination Amount by
replacing the words "costs and expenses" in clause (B) of the
such definition with "costs, expenses and indemnity amounts".
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p. Adding the following definition immediately after the definition
of Pool Stated Balance:
Pooling and Servicing Agreement: The pooling and servicing
agreement, dated as of March 1, 2007, by and among the Depositor,
the Master Servicer, the Securities Administrator and the
Trustee.
q. Replacing the definition of Prepayment Period in its entirety
with the following:
Prepayment Period: As to any Distribution Date, the calendar
month preceding the month of such Distribution Date.
r. The definition of REMIC is hereby amended by deleting the second
sentence of such definition.
s. Adding the following definition immediately after the definition
of Securities Act:
Securities Administrator: Xxxxx Fargo Bank, N.A.
t. Adding the following definition immediately after the definition
of Servicer Advance Date:
Servicer Information: As defined in Section 11.07(a).
u. Revising the definition of Servicing Advances by adding the words
"prior liens," immediately before the word "real".
v. Replacing "0.50%" in the definition of Servicing Fee Rate with
"0.25%".
w. Replacing "Trustee" in each instance in the definition of
Servicing Transfer Costs with "Master Servicer".
x. Amending the definition of Subcontractor by inserting "(as
defined in the Pooling and Servicing Agreement)" immediately
after the word "Balance".
y. Amending the definition of Sub-Servicer by inserting "(as defined
in the Pooling and Servicing Agreement)" immediately after the
word "Balance" in clause (iii) of such definition.
z. Replacing the definition of Trust Fund in its entirety with the
following:
Trust Fund: The corpus of the Issuing Entity.
aa. Replacing "Xxxxx Fargo Bank, N.A." in the definition of Trustee
with "HSBC Bank USA, National Association".
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2. Section 2.09(b) is amended by inserting ", the Master Servicer"
immediately following "Depositor" in each instance.
3. Article III (Administration and Servicing of Mortgage Loans) is hereby
amended as follows.
a. Replacing "Trustee" with "Master Servicer" in each instance in each
section of Article III, other than Sections 3.01, 3.03, 3.05 through 3.11, 3.12,
3.14 and 3.15.
b. Replacing "herein" with "in the Pooling and Servicing Agreement"
in the third sentence of the first paragraph of Section 3.01.
c. Deleting the last paragraph of Section 3.01, including clauses
(a), (b) and (c) of such paragraph.
d. Amending Section 3.02 by:
(i) replacing the fifth sentence of clause (a) with the
following:
As set forth in Section 11.02, the Servicer shall deliver
to the Master Servicer a copy of any subservicing agreement
executed by the Servicer. The Master Servicer agrees that it will
keep any such subservicing agreement confidential. The Servicer
may redact any such subservicing agreements prior to delivery to
remove any fees paid to any Sub-Servicers. The Master Servicer
shall execute any commercially reasonable confidentiality
agreement provided to it by the Servicer concerning any
confidential information in any such Subservicing Agreement.
(ii) replacing clause (c) with the following:
The Servicer shall not permit a Sub-Servicer that would be
required under this Agreement or any subservicing agreement to
deliver an Annual Statement of Compliance, an Assessment of
Compliance and an Accountant's Attestation to perform any
servicing responsibilities hereunder with respect to the Mortgage
Loans unless that Sub-Servicer first agrees in writing with the
Servicer to deliver such Annual Statement of Compliance, an
Assessment of Compliance and an Accountant's Attestation in such
manner and at such times that permits the Servicer to comply with
Sections 3.17 and 3.18 of this Agreement.
e. Replacing "out of the Certificate Account" with "to the Master
Servicer pursuant to the Pooling and Servicing Agreement" in the
penultimate sentence of the first paragraph of Section 3.04.
f. Amending Section 3.05 by:
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(i) inserting "as defined in the Pooling and Servicing Agreement"
immediately after "Stated Principal Balance" in the fourth
sentence of clause (a);
(ii) replacing the word "Trustee" with "Master Servicer" in each
instance in the last two paragraphs of clause (d);
(iii) deleting the last sentence of the last paragraph of clause
(d);
(iv) replacing clause (e) in its entirety with "[Reserved]";
(v) deleting "or the Certificate Account", "or the Trustee, as
applicable", "(i) in the case of the Collection Account" and
"(ii) in the case of the Certificate Account, the Business Day
immediately preceding the first Distribution Date that follows
the date of such investment (except that if such Permitted
Investment is an obligation of the institution that maintains
such Certificate Account or is otherwise immediately available,
then such Permitted Investment shall mature not later than such
Distribution Date) and, in each case" from the first sentence of
clause (f) of such Section; and
(vi) deleting the last sentence of clause (f) of such Section.
g. Amending Section 3.06 by:
(i) inserting ",condominium or PUD association dues or comparable
items" immediately after the word "premiums" in the first
sentence of the first paragraph; and
(ii) replacing "this Agreement in accordance with Section 9.01
hereof" with "the Pooling and Servicing Agreement" in the
penultimate sentence of the second paragraph of Section 3.06.
h. Amending Section 3.07 by:
(i) inserting "the Master Servicer, the Securities Administrator,
the Trustee" immediately after "provide the Depositor," in the
first sentence of the second paragraph;
(ii) inserting the following sentence at the end of the second
paragraph of such Section: "In addition, subject to limitations
of applicable privacy laws, the Servicer may make public
information regarding performance of the Mortgage Loans."
i. Amending Section 3.08 by:
(i) replacing "Certificate Account" with "Master Servicer
Collection Account" in each instance;
C-5
(ii) deleting "2.02, 2.03 or" from clause (a)(ix);
(iii) replacing "Section 2.03" with "Article II of the Pooling
and Servicing Agreement" in clause (a)(xi);
(iv) replacing "this Agreement pursuant to Section 9.01 hereof"
with "the Pooling and Servicing Agreement" in clause (a)(xiv);
(v) replacing the word "Trustee" with "Master Servicer" in the
first and third full paragraphs of such Section;
(vi) replacing "2:00" in such Section with "2:30" and replacing
"the Servicer shall cause to be withdrawn" with "the Servicer
will use commercially reasonable efforts to cause to be withdrawn
from the Collection Account";
(vii) replacing the second and third instances of "2:00" with
"3:00" in the paragraph immediately following clause (a)(xiv);
(viii) deleting the words "or the Trustee" and "or the
Certificate Accounts" from the last paragraph of clause (a); and
(ix) deleting clause (b) of such Section.
j. Amending Section 3.10 by:
(i) amending clause (i) of the first sentence of the first
paragraph of such Section by (A) inserting the word "estimated"
immediately before the word "replacement" and (B) inserting
"(which may be the last known coverage)" immediately after the
word "Property";
(ii) replacing the word "Trustee" with "Master Servicer" in the
fifth sentence of the first paragraph and the last sentence of
the second paragraph of such Section; and
(ii) amending the last sentence of the first paragraph of such
Section by (A) replacing the word "original" with "outstanding"
in the clause (i), (B) inserting the word "estimated" immediately
before the word "replacement" in clause (ii) and (C) inserting
"(which may be the last known coverage)" immediately after the
word "Property" in clause (ii).
k. Amending Section 3.11 by:
(i) inserting the words "; and provided further, that the
Servicer need not take any such action if the Servicer believes
the collections and other recoveries in respect of the Mortgage
Loan would be maximized if the Mortgage Loan were not
C-6
accelerated" immediately after the word "Policy" in the first
sentence of such Section;
(ii) replacing "Trustee" with "Master Servicer" in the second
sentence of the first paragraph of such Section;
(iii) replacing "if in the reasonable judgment of the Servicer,
entering into an assumption and modification agreement with a
Person to whom such property shall be conveyed and releasing the
original Mortgagor from liability would be in the best interests
of the Certificateholders" with "or take any of the above actions
if the Servicer believes the collections and other recoveries in
respect of the Mortgage Loan would be maximized if the Mortgage
Loan were not accelerated and such actions not taken" in the
fifth sentence of the first paragraph of such Section; and
(iv) inserting "Master Servicer and" immediately after "shall
notify the" in the seventh sentence of such Section.
l. Amending Section 3.12 by:
(i) deleting the fourth sentence of clause (a) of such Section;
(ii) replacing the word "knowledge" in the last sentence of the
first paragraph of such Section with "received written notice";
(iii) adding ", which shall not be the Servicer" to the end of
the first sentence of the second paragraph of clause (a);
(iv) deleting the third sentence of the second paragraph of
clause (a);
(v) adding the words ", the Master Servicer and the Securities
Administrator" immediately after the word "Trustee" in each
instance in the third paragraph of clause (a) of such Section;
(vi) replacing the word "would" in the first sentence of the
fourth paragraph of clause (a) with "are expected to";
(vii) replacing the word "Trustee" with "Securities
Administrator" in clause (c) of such Section;
(viii) replacing the words "Certificate Account" with
"Distribution Account (as defined in the Pooling and Servicing
Agreement in clause (c);
(ix) replacing the word "possible" with "likely" in the first
sentence of clause (d);
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(x) inserting "Master Servicer and" immediately preceding
"Trustee" in the last sentence of clause (d); and
(xi) revising the last sentence of clause (e) of such Section by
inserting "as defined in the Pooling and Servicing Agreement"
immediately after the word "Certificates" in each instance.
m. Amending Section 3.13 by:
(i) replacing the title of such Section with "Release of Mortgage
Files";
(ii) replacing "Trustee or its designee" in the first sentence of
the first paragraph of such Section with "Custodian";
(iii) deleting "Upon a receipt of a copy of such request, the
Trustee or its designee shall promptly release the Mortgage File
to the Servicer, and" from the second sentence of the first
paragraph of such Section, adding "by the Servicer" immediately
after the word "incurred" in the third sentence of the first
paragraph of such Section;
(iv) deleting the fourth sentence of the first paragraph of such
Section;
(v) replacing "designee" with "Custodian" in each instance in the
first sentence of the second paragraph of such Section;
(vi) deleting the second, third, fourth and fifth sentences of
the second paragraph of such Section;
(vii) deleting the third paragraph of such Section;
(viii) [reserved];
(ix) replacing "designee" with "Custodian" in each instance in
the fourth paragraph of such Section;
(x) adding "or its Custodian" immediately after "returned to the
Trustee" in the second sentence of the fourth paragraph of such
Section; and
(xi) adding the following sentence to the end of such Section:
The Servicer shall have no liability for, and shall be
excused from, any non-performance hereunder to the extent such
non-performance is solely and directly caused by (i) the failure
of the Custodian to release (and not caused by any failure or
non-performance by the Servicer), in a manner consistent with the
terms of the Custodial Agreement, any Mortgage File requested by
the Servicer pursuant to a Request for Release and (ii) the
failure of the Trustee to execute a request for the execution of
documents.
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n. Amending Section 3.14 by replacing "Certificate Account" with
"Master Servicer Collection Account, the Distribution Account (as
defined in the Pooling and Servicing Agreement)" and replacing
"Trustee" with "Master Servicer or the Securities Administrator"
in the second sentence of such Section.
o. Amending Section 3.15 by replacing "Trustee" with "Master
Servicer" in the last sentence of the second paragraph of such
Section.
p. Replacing Section 3.16 in its entirety with the following:
Section 3.16 [Reserved].
q. Replacing Section 3.19 in its entirety with the following:
Section 3.19 Subordination of Liens.
In connection with any governmental program under which a
Mortgagor may obtain a benefit in the event the related Mortgaged
Property is subject to a disaster provided that the Mortgagor
files a covenant or other lien against the Mortgaged Property and
is required to obtain the subordination thereto of the Mortgage,
the Servicer may cause such subordination to be executed and
filed provided that either (i) the related Mortgage Loan is in
default or default with respect to such Mortgage Loan is imminent
or (ii) such subordination and participation in such governmental
program will not result in a change in payment expectations with
respect to such Mortgage Loan. For purposes of the preceding
sentence, a change in payment expectations occurs if, as a result
of such subordination and participation in such governmental
program, (1) there is a substantial enhancement of the
Mortgagor's capacity to meet the payment obligations under the
Mortgage Loan and that capacity was primarily speculative prior
to such subordination and participation in such governmental
program and is adequate after such subordination and
participation in such governmental program or (2) there is a
substantial impairment of the Mortgagor's capacity to meet the
payment obligations under the Mortgage Loan and that capacity was
adequate prior to such subordination and participation in such
governmental program and is primarily speculative after such
subordination and participation in such governmental program. The
preceding sentence and clause (ii) of the second preceding
sentence are intended to comply with Treasury Regulations Section
1.1001-3(e)(4) and shall be interpreted in accordance therewith.
r. Replacing Section 3.24 in its entirety with the following:
Section 3.24 Information to the Master Servicer.
No later than [the tenth (10th) calendar day of each month
(or if such tenth day is not a Business Day, the Business Day
immediately preceding such tenth
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day)], the Servicer shall forward to the Master Servicer reports
in the format set forth in Exhibit X-0, Xxxxxxx X-0 and Exhibit
M-3 hereto (or such other format, with respect to Exhibit M-1 and
Exhibit M-2, as mutually agreed by the Servicer and the Master
Servicer), with respect to monthly remittances, defaulted
Mortgage Loans and realized loss calculations, respectively.
s. Replacing "Trustee" with "Master Servicer" in the first sentence
of Section 3.25.
t. Replacing Section 3.26 in its entirety with the following:
Section 3.26 Solicitation.
The Servicer may not solicit or refer to a mortgage
originator, who may or may not be an affiliate of the Depositor
or the Servicer, any Mortgagor for refinancing or otherwise take
action to encourage refinancing.
u. Inserting the following new Sections 3.28 and 3.29 immediately
after Section 3.27:
Section 3.28 Special Servicing Agreements.
The Servicer may enter into a special servicing advisory
agreement with (i) a holder of (a) the Class R Certificate, (b)
the Class C Certificate, (c) one or more other Class of
subordinated certificates issued by the Issuing Entity and/or (d)
a NIM Note and/or (ii) an advisor designated by any of the
foregoing. Pursuant to such agreement, the Servicer may provide
such holder or advisor, in its capacity as special servicing
advisor, with loan-level information with respect to the Mortgage
Loans, and such person may advise the Servicer with respect to
efforts to maximize recoveries with regard to the Mortgage Loans,
including, without limitation, the commencement of foreclosure
proceedings or other actions.
Section 3.29 Servicing Rights Owner.
At the request of MLML (the "Servicing Rights Owner"), the
Servicer shall resign as Servicer of the Mortgage Loans upon the
selection and appointment of a successor servicer by the
Servicing Rights Owner; provided that the Servicing Rights Owner
delivers to the Master Servicer, the Trustee and the Securities
Administrator a letter indicating that such successor servicer
designated by the Servicing Rights Owner meets the eligibility
requirements for a successor servicer. No appointment of a
successor servicer hereunder shall be effective until the Master
Servicer shall have consented thereto. Upon such appointment, at
the date specified in such letter such successor servicer will
become a servicer pursuant to the terms of this Agreement. Any
successor servicer shall be an institution that is a Xxxxxx Xxx
and Xxxxxxx Mac approved seller/servicer in good
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standing, that has a net worth of at least $15,000,000, and that
is willing to service the Mortgage Loans and executes and
delivers to the Depositor, the Securities Administrator and the
Trustee an agreement accepting such delegation and assignment,
that contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to
this Agreement; and provided further that each Rating Agency
acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be
qualified or reduced as a result of such assignment and
delegation.
4. Article IV (Distributions) is hereby amended as follows:
a. Amending Section 4.01 by:
(i) replacing "Trustee" with "Master Servicer" in each
instance;
(ii) inserting "(as defined in the Pooling and Servicing
Agreement)" immediately after "Stated Principal Balance" in
each instance in the last sentence of the first paragraph of
clause (a); and
(iii) replacing "Certificate Account" with "Master Servicer
Collection Account" in the first sentence of the second
paragraph of clause (a).
b. Amending Section 4.02 by inserting "the Master Servicer, the
Securities Administrator," immediately before "the Issuing
Entity" in the second paragraph of such Section.
5. Article VI (The Depositor and the Servicer) is hereby amended as
follows.
a. Replacing "Trustee" with "Securities Administrator" in each
instance in Section 6.03.
b. Adding "Trustee, Master Servicer, Depositor, the Securities
Administrator," immediately after "liability to the" in the
first sentence of Section 6.03.
c. Replacing "Trustee" with "Master Servicer" in each instance
in Sections 6.04 and 6.05.
d. Replacing "Persons performing servicing for mortgage loans
purchased by Xxxxxx Xxx or Xxxxxxx Mac" with "the Servicer"
in the second sentence of Section 6.05.
e. Inserting ", as defined in the Pooling and Servicing
Agreement" after the word "Certificate" in the first
sentence of Section 6.06.
6. Article VII (Default; Termination of Servicer) is hereby amended
as follows.
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a. Replacing "Trustee" with "Master Servicer" in each instance in
Sections 7.01(a).
b. Deleting "other than its rights as a Certificateholder hereunder"
in each instance in Section 7.01.
c. Amending Section 7.01(a)(i) by:
(i) inserting ", Master Servicer Collection Account" immediately
after "Collection Account" in such Section;
(ii) replacing "Certificate Account" with "Distribution Account
(as defined in the Pooling and Servicing Agreement)"; and
(iii) replacing "prior to the related Distribution Date" with
"Distribution Account Deposit Date (as defined in the Pooling and
Servicing Agreement)".
d. Deleting "or the Depositor" in clause (a)(ii).
e. Replacing clause (a)(vi) with the following:
(vi) any failure by the Servicer, any Subservicer or any
Subcontractor to (A) deliver any information, report,
certification or accountants' letter when and as required under
Section 11.04, 11.05 or 11.06 [or (B) any failure by the Servicer
to identify pursuant to Section 11.06(b) any Subcontractor
"participating in the servicing function" within the meaning of
Item 1122 of Regulation AB,] which continues unremedied for a
period of fourteen calendar days after the date upon which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer, shall constitute
an Event of Default with respect to the Servicer under this
Agreement, and shall entitle the Master Servicer and/or the
Depositor, as applicable, to terminate the rights and obligations
of the Servicer as servicer under this Agreement in accordance
with Section 7.01 hereof; provided that to the extent that any
provision of this Agreement expressly provides for the survival
of certain rights or obligations following termination of the
Servicer as servicer, such provision shall be given effect;
(vii) any failure by the Servicer, any Subservicer or any
Subcontractor to duly perform, within the required time period,
its obligations under Sections 11.03 of this Agreement.
f. Amending Section 7.02 by:
(i) replacing "Trustee" with "Master Servicer" in each instance
in such Section;
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(ii) inserting "when and" immediately after "Trustee shall," in
the first sentence of the first paragraph of such Section;
(iii) deleting "the appointment of which does not adversely
affect the then current rating of the Certificates by each Rating
Agency" in the third sentence of the first paragraph of such
Section; and
(iv) deleting "Depositor and the" and "; and provided further
that each Rating Agency acknowledges that its rating of the
certificates in effect immediately prior to such assignment and
delegation will not be qualified or reduced as a result of such
assignment and delegation" from the fourth sentence of the first
paragraph of such Section.
7. Article X (Miscellaneous Provisions) is hereby amended as
follows.
a. Section 10.01 is hereby replaced in its entirety with the
following:
10.01 Amendment
This Agreement may be amended from time to time by the
Depositor, the Servicer and the Master Servicer by written
agreement.
b. Amending Section 10.07 by replacing "Trustee" with "Master
Servicer" in the first sentence of such Section.
c. Amending Section 10.09 by (i) replacing "Trustee" with
"Master Servicer" in each instance in the first sentence of
such Section and (ii) replacing "or the Trustee" with "or
the "Master Servicer" and replacing "of the Trustee" with
"of the Securities Administrator" in the second sentence of
such Section.
8. A new article is added immediately following Section 10.11 to
read as indicated in Exhibit D attached hereto.
9. Exhibits A, D, X-0, X-0, X, X, X, X, X, X-0, X-0, X-0, X-0, X-0,
X-0, P, R, S and T and Schedules X, Y and Z shall be inapplicable
to the Servicing Agreement.
10. Exhibit I is hereby replaced in its entirety with Exhibit I
attached hereto.
11. Exhibit L is hereby replaced in its entirety with Exhibit L
attached hereto.
12. Exhibit M-1 is hereby replaced in its entirety with Exhibit M-1
attached hereto.
13. Exhibit M-2 is hereby replaced in its entirety with Exhibit M-2
attached hereto.
14. Exhibit M-3 is hereby added as Exhibit M-3 attached hereto.
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15. Exhibit Q is hereby replaced in its entirety with Exhibit Q
attached hereto.
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EXHIBIT D
ARTICLE XI.
COMPLIANCE WITH REGULATION AB
Section 11.01. Intent of the Parties; Reasonableness.
The Master Servicer and the Servicer acknowledge and agree that the
purpose of Article 11 of this Agreement is to facilitate compliance by the
Master Servicer and the Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. Neither the Master Servicer nor
the Depositor shall exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and the
rules and regulations of the Commission thereunder. The Servicer acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Master
Servicer or the Depositor in good faith for delivery of information required
under these provisions on the basis of evolving interpretations of Regulation
AB. The Servicer shall cooperate reasonably with the Master Servicer to deliver
to the Securities Administrator, the Master Servicer (including any of its
assignees or designees) and the Depositor, any and all statements, reports,
certifications, records and any other information necessary to permit the
Securities Administrator, the Master Servicer or the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to the
Servicer, any Subservicer, or the servicing of the Mortgage Loans, to be
necessary in order to effect such compliance. The Servicer shall not be required
to comply with this Article XI with respect to any fiscal year as to which the
Servicer was not servicing Mortgage Loans hereunder to the extent that the
Depositor determines that compliance is not required by law under the Form 15
Suspension Notification is filed.
Section 11.02. Subservicing Agreements.
On or before March 1 of each year, the Servicer shall deliver to the
Master Servicer a copy of any subservicing agreement executed by the Servicer
not previously provided. The Master Servicer agrees that it will keep any such
subservicing agreement confidential. The Servicer may redact any such
subservicing agreements prior to delivery to remove any fees paid to any
Sub-Servicers. The Master Servicer shall execute any commercially reasonable
confidentiality agreement provided to it by the Servicer concerning any
confidential information in any such Subserving Agreement.
Section 11.03. Information to Be Provided by the Servicer.
The Servicer shall, as promptly as practicable following notice to or
discovery by the Servicer, provide to the Master Servicer and the Depositor (in
writing and in form and substance
reasonably satisfactory to the Master Servicer and the Depositor) the
information specified in paragraph (a) of this Section.
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Servicer
shall (or shall cause each Subservicer to) (i) provide prompt notice to the
Master Servicer and the Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B) any
affiliations or relationships as set forth in Items 1119(b) and (c) of
Regulation AB that develop following the Closing Date between the Servicer, any
Subservicer or and any of the parties specified in Item 1119 of Regulation AB,
(C) any Event of Default under the terms of this Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Servicer, and
(E) the Servicer's entry into an agreement with a Subservicer to perform or
assist in the performance of any of the Servicer's obligations under this
Agreement and (ii) provide to the Master Servicer and the Depositor a
description of such proceedings, affiliations or relationships, as set forth in
Sections 1119(b) and (c) of Regulation AB.
(b) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement by any Person (i)
into which the Servicer or such Subservicer may be merged or consolidated, or
(ii) which may be appointed as a successor to the Servicer or any Subservicer,
the Servicer shall provide to the Master Servicer and the Depositor, at least 15
calendar days prior to the effective date of such succession or appointment, (x)
written notice to the Master Servicer and the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Master Servicer and the Depositor, all information reasonably requested
by the Master Servicer or the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(c) In addition to such information as the Servicer, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of the securitization transaction, the Servicer or such
Subservicer, as applicable, shall, to the extent the Servicer or such
Subservicer has knowledge, provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice of the occurrence
of any of the following events that have not already been disclosed to such
party through the Servicer's prior notice or regular servicing data along with
all information, data, and materials related thereto as may be required to be
included in the related distribution report on Form 10-D (as specified in the
provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of
pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material
over time (Item 1121(a)(11) of Regulation AB); and
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB).
D-2
(d) The Servicer shall provide to the Master Servicer and the
Depositor, evidence of the authorization of the person signing any certification
or statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports as required
pursuant to the Servicing Agreement, and, upon reasonable request, such other
information related to the Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder.
Section 11.04. Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2008, the
Servicer shall deliver to the Master Servicer and the Depositor a statement of
compliance addressed to the Master Servicer and the Depositor and signed by an
authorized officer of the Servicer, to the effect that (i) a review of the
Servicer's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement during
such period has been made under such officer's supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and the
status thereof.
Section 11.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2008,
the Servicer shall:
(i) deliver to the Master Servicer and the Depositor a
report (in form and substance reasonably satisfactory to the
Master Servicer and the Depositor) regarding the Servicer's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Master Servicer and the
Depositor and signed by an authorized officer of the Servicer,
and shall address each of the "Applicable Servicing Criteria"
specified on Exhibit Q hereto. Solely for the purpose of Section
1122(d)(3)(iii) of Exhibit Q, the term "investor" shall mean the
Master Servicer;
(ii) deliver to the Master Servicer and the Depositor a
report of a registered public accounting firm reasonably
acceptable to the Master Servicer and the Depositor that attests
to, and reports on, the assessment of compliance made by the
Servicer and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1 02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause each Subservicer, and each Subcontractor
determined by the Servicer pursuant to Section 11.06(b) to be
"participating in the servicing
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function" within the meaning of Item 1122 of Regulation AB, if
any, and deliver to the Master Servicer and the Depositor an
assessment of compliance and accountants' attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor
described in clause (iii), if any, to provide, to the Depositor,
the Master Servicer and any other Person that will be responsible
for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on
behalf of an asset-backed issuer with respect to the
securitization transaction a certification, signed by the
appropriate officer of the Servicer, in the form attached hereto
as Exhibit L.
The Servicer acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by the Servicer pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 11.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit Q hereto delivered to the
Master Servicer concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section 11.06.
Section 11.06. Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of any
Subservicer that is required to provide Annual Statement of Compliance or on an
Assessment of Compliance to fulfill any of the obligations of the Servicer as
servicer under this Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor that is required to provide an
Assessment of Compliance, and shall not permit any Subservicer that is required
to provide an Assessment of Compliance, to hire or otherwise utilize the
services of any Subcontractor, to fulfill any of the obligations of the Servicer
as servicer under this Agreement unless the Servicer complies with the
provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of
the Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subservicer. The Servicer shall cause any Subservicer used by
the Servicer (or by any Subservicer) for the benefit of the Master Servicer and
the Depositor to comply with the provisions of this Section and with Sections
11.03(b), (c) and (d), 11.04, 11.05 and 11.07 of this Agreement to the same
extent as if such Subservicer were the Servicer, and to provide the information
required with respect to such Subservicer under Section 11.03(d) of this
Agreement. The Servicer shall be responsible for
D-4
obtaining from each such Subservicer and delivering to the Master Servicer and
the Depositor any servicer compliance statement required to be delivered by such
Subservicer under Section 11.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 11.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section 11.05 as and when required
to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of
the Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subcontractor. The Servicer shall promptly upon request
provide to the Master Servicer and the Depositor (or any designee of the
Depositor, such as an administrator) a written description (in form and
substance reasonably satisfactory to the Depositor and the Master Servicer) of
the role and function of each such Subcontractor utilized by the Servicer or any
Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which
(if any) of such Subcontractors are "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, and (iii) which elements of
the Servicing Criteria will be (x) addressed in assessments of compliance
provided by each Subcontractor identified pursuant to clause (ii) of this
paragraph or (y) provided by the Servicer in accordance with Regulation AB
telephone interpretation 17.06.
As a condition to the utilization of any Subcontractor determined by
the Servicer to be "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, the Servicer shall cause any such Subcontractor
used by the Servicer (or by any Subservicer) for the benefit of the Master
Servicer and the Depositor to comply with the provisions of Sections 11.05 and
11.07 of this Agreement to the same extent as if such Subcontractor were the
Servicer for those criteria in Exhibit Q for which the Subcontractor is
responsible. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Master Servicer and the Depositor any
assessment of compliance and attestation and the other certifications required
to be delivered by such Subcontractor under Section 11.05, in each case as and
when required to be delivered.
Section 11.07. Indemnification; Remedies.
The Servicer shall indemnify the Master Servicer, each affiliate of
the Master Servicer, the Sponsor and the Issuing Entity; each Person (including,
but not limited to, the Master Servicer if applicable) responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to the securitization transaction; each broker dealer acting as
underwriter, placement agent or initial purchaser, each Person who controls any
of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees, agents and affiliates of each of the
foregoing and of the Depositor (each, an "Indemnified Party"), and shall hold
each of them harmless from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees
D-5
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, data, accountants' letter or other material
provided under this Article 11 by or on behalf of the Servicer,
or provided under this Article 11 by or on behalf of any
Subservicer or Subcontractor (collectively, the "Servicer
Information"), or (B) the omission or alleged omission to state
in the Servicer Information a material fact required to be stated
in the Servicer Information or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Servicer Information and not
to any other information communicated in connection with a sale
or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or
separately from such other information;
(ii) any breach by the Servicer of its obligations under
this Article 11, including particularly any failure by the
Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants' letter or other
material when and as required under this Article 11, including
any failure by the Servicer to identify pursuant to Section
11.06(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB; or
(iii) the negligence bad faith or willful misconduct of the
Servicer in connection with its performance under this Article
11.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by such Indemnified Party
as a result of any claims, losses, damages or liabilities incurred by such
Indemnified Party in such proportion as is appropriate to reflect the relative
fault of such Indemnified Party on the one hand and the Servicer on the other.
This indemnification shall survive the termination of this Agreement
or the termination of any party to this Agreement.
Section 11.08. Third Party Beneficiary.
For purposes of this Article 11 and any related provisions thereto,
the Master Servicer shall be considered a third-party beneficiary of this
Agreement, entitled to all the rights and benefits hereof as if it were a direct
party to this Agreement.
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EXHIBIT I
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement, dated as of March 26, 2007 among HSBC Bank
USA, National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc.
and Xxxxx Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by
you as Custodian for the Owner pursuant to the above-captioned Custodial
Agreement, we request the release, and hereby acknowledge receipt, of the
Custodian's Mortgage File for the Mortgage Loan described below, for the reason
indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
1. Mortgage Paid in full
_________________
2. Foreclosure
_________________
3. Substitution
_________________
4. Other Liquidation (Repurchases, etc.)
_________________
5. Nonliquidation Reason: ___________________________
_________________
By:
-------------------------------
(authorized signer)
Issuer:
---------------------------
Address:
--------------------------
Date:
-----------------------------
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your
signature and date below:
Please acknowledge the execution of the above request by your
signature and date below:
---------------------------------------- -------------------------
Signature Date
Documents returned to
Custodian:
---------------------------------------- -------------------------
Custodian Date
I-2
EXHIBIT L
FORM OF ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [___ l, 200[_] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ____________________________, the _______________________ of [NAME
OF COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and
the [Master Servicer] [Securities Administrator] [Trustee], and their officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed, or persons under my supervision have reviewed,
the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the "Compliance Statement"), the report on
assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by
the Company during 200[ ] that were delivered by the Company to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant
to the Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report
required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
-------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
X-0
XXXXXXX X-0
STANDARD FILE LAYOUT - MASTER SERVICING
MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------- --------------------------------------------------- ------- --------------------------------------- ----
SER_INVESTOR_NBR A value assigned by the Servicer to define a group Text up to 10 digits 20
of loans.
LOAN_NBR A unique identifier assigned to each loan by the Text up to 10 digits 10
investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It is Maximum length of 30 (Last, First) 30
not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled interest 2 No commas(,) or dollar signs ($) 11
payment that a borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6
NET_INT_RATE The loan gross interest rate less the service fee 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 by 4 Max length of 6 6
the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
ARM_INDEX_RATE The index the Servicer is using to calculate a 4 Max length of 6 6
forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs ($) 11
beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at the end 2 No commas(,) or dollar signs ($) 11
of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the MM/DD/YYYY 10
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 ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_2 The curtailment date associated with the second MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
PIF_AMT The loan "paid in full" amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10
ACTION_CODE The standard FNMA numeric code used to indicate Action Code Key: 15=Bankruptcy, 2
the default/delinquent status of a particular loan. 30=Foreclosure, , 60=PIF,
63=Substitution, 65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if 2 No commas(,) or dollar signs ($) 11
applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at 2 No commas(,) or dollar signs ($) 11
the beginning of the cycle date to be passed
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to investors 2 No commas(,) or dollar signs ($) 11
at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current cycle -- only applicable
for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current cycle as
reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
M-1-2
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the service 2 No commas(,) or dollar signs ($) 11
fee amount for the current reporting cycle as
reported by the Servicer -- only applicable for
Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived 2 No commas(,) or dollar signs ($) 11
by the servicer.
MOD_DATE The Effective Payment Date of the Modification for MM/DD/YYYY 10
the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or numeric 30
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or dollar signs ($) 11
advances made by Servicer.
BREACH_FLAG Flag to indicate if the repurchase of a loan is Y=Breach
due to a breach of Representations and Warranties N=NO Breach
Let blank if N/A
M-1-3
EXHIBIT M-2
STANDARD FILE LAYOUT - DELINQUENCY REPORTING
*The column/header names in BOLD are the minimum fields Xxxxx Fargo
must receive from every Servicer
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------ ------------------------------------------------------------------- ------- ----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer to
identify a group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the servicer at MM/DD/YYYY
the end of processing cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved by the MM/DD/YYYY
courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by Dismissal, MM/DD/YYYY
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 Is Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with instructions MM/DD/YYYY
to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure Action MM/DD/YYYY
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers price 2
opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are completed 2
pursuant to a broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on a loan.
Code indicates the reason why the loan is in default for this
cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage Insurance MM/DD/YYYY
Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool Insurer MM/DD/YYYY
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
M-2-2
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was filed 10 MM/DD/YYYY
FRCLSR_BID_AMT The foreclosure sale bid amount 11 No commas(,) or
dollar signs ($)
FRCLSR_SALE_TYPE The foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
REO_PROCEEDS The net proceeds from the sale of the REO property. No commas(,) or
dollar signs ($)
BPO_DATE The date the BPO was done.
CURRENT_FICO The current FICO score
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed with the Hazard Insurance 10 MM/DD/YYYY
Company.
HAZARD_CLAIM_AMT The amount of the Hazard Insurance Claim filed. 11 No commas(,) or
dollar signs ($)
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company disbursed the claim payment. 10 MM/DD/YYYY
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance Company paid on the claim. 11 No commas(,) or
dollar signs ($)
ACTION_CODE Indicates loan status Number
NOD_DATE MM/DD/YYYY
NOI_DATE MM/DD/YYYY
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
ACTUAL_PAYMENT_ PLAN_END_DATE
ACTUAL_REO_START_DATE MM/DD/YYYY
REO_SALES_PRICE Number
REALIZED_LOSS/GAIN As defined in the Servicing Agreement Number
STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
M-2-3
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
M-2-4
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
M-2-5
STANDARD FILE CODES - DELINQUENCY REPORTING
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
X-0-0
XXXXXXX X-0
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND
ALL CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE
REMITTANCE REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT
BEING PASSED UNTIL THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO
REMIT ALL FUNDS PENDING LOSS APPROVAL AND /OR RESOLUTION OF ANY
DISPUTED ITEMS.
The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing
fee that would have been earned if all delinquent payments had
been made as agreed. For documentation, an Amortization
Schedule from date of default through liquidation breaking out
the net interest and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal
Balance of the Mortgage Loan as calculated on a monthly basis.
For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form
- breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior
to default require evidence of servicer efforts to recover
advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance
forward)
* Other expenses - copies of corporate advance history
showing all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the
decision and WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
2. CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale,
bid instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332
form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental
proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the
amount represents a realized gain, show the amount in
parenthesis ( ).
M-3-2
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ________________ Date: ______________________
Phone: ______________________ Email Address:_______________________
Servicer Loan No. Servicer Name Servicer Address
________________________ ________________________ __________________________
XXXXX FARGO BANK, N.A. LOAN NO._____________________________
Borrower's Name: _____________________________________________________
Property Address: ____________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount ______________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $______________ (1)
(2) Interest accrued at Net Rate ______________ (2)
(3) Accrued Servicing Fees ______________ (3)
(4) Attorney's Fees ______________ (4)
(5) Taxes (see page 2) ______________ (5)
(6) Property Maintenance ______________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ______________ (7)
(8) Utility Expenses ______________ (8)
(9) Appraisal/BPO ______________ (9)
(10) Property Inspections ______________ (10)
(11) FC Costs/Other Legal Expenses ______________ (11)
(12) Other (itemize) ______________ (12)
Cash for Keys________________________ ______________ (12)
HOA/Condo Fees_______________________ ______________ (12)
_____________________________________ ______________ (12)
TOTAL EXPENSES $______________ (13)
CREDITS:
(14) Escrow Balance $______________ (14)
(15) HIP Refund ______________ (15)
(16) Rental Receipts ______________ (16)
(17) Hazard Loss Proceeds ______________ (17)
M-3-3
(18) Primary Mortgage Insurance / Gov't Insurance ______________ (18a)
HUD Part A ______________ (18b)
HUD Part B
(19) Pool Insurance Proceeds ______________ (19)
(20) Proceeds from Sale of Acquired Property ______________ (20)
(21) Other (itemize) ______________ (21)
__________________________________________ ______________ (21)
TOTAL CREDITS $______________ (22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $______________ (23)
M-3-4
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF BASE
(TAX /INS.) DATE PAID COVERAGE TOTAL PAID AMOUNT PENALTIES INTEREST
----------- --------- --------- ---------- ------ --------- --------
M-3-5
EXHIBIT Q
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period in
the amount of coverage required by and otherwise in accordance with the terms
of the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or X
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X**
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed X
and approved in accordance with any conditions or requirements in the
transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with X
the related mortgage loan documents are posted to the Servicer's obligor
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related
Q-2
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-------------------------------------------------------------------------------------------------------------
mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications X
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): X
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are X
made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
behalf of an obligor are paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to the obligor's error or
omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business X
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a) (1)
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
** Solely for the purpose of Section 1122(d)(3)(iii), the term "investor"
shall mean the Master Servicer.
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