Exhibit 99.5
RECONSTITUTED SERVICING AGREEMENT
Luminent Mortgage Trust 2006-7
This Reconstituted Servicing Agreement, dated as of December 27, 2006 (this
"Agreement"), is by and among INDYMAC BANK, F.S.B. ("IndyMac" or the
"Servicer"), XXXXX ASSET SECURITIZATION, INC. ("Xxxxx" or the "Depositor"), MAIA
MORTGAGE FINANCE STATUTORY TRUST ("Maia" or the "Seller") and XXXXX FARGO BANK,
N.A., as master servicer (in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the "Securities Administrator"), and
is acknowledged by HSBC BANK USA, NATIONAL ASSOCIATION, as trustee (the
"Trustee").
RECITALS
WHEREAS, the Seller has conveyed the mortgage loans listed on Exhibit Two
hereto (the "Serviced Loans") to the Depositor, and the Depositor in turn has
conveyed the Serviced Loans to the Trustee, all pursuant to a pooling agreement,
dated as of December 1, 2006 (the "Pooling Agreement"), among the Seller, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee;
WHEREAS, the Serviced Loans are currently being serviced by IndyMac for the
Seller pursuant to a Flow Sale and Servicing Agreement, dated as of April 21,
2006 (the "Servicing Agreement"), among the Seller, Mercury Mortgage Finance
Statutory Trust and IndyMac, a copy of which is annexed hereto as Exhibit Three;
WHEREAS, the Seller desires that IndyMac continue to service the Serviced
Loans and IndyMac has agreed to do so, subject to the rights of the Master
Servicer to terminate the rights and obligations of IndyMac hereunder as set
forth herein and to the other conditions set forth herein;
WHEREAS, Section 12.11 of the Servicing Agreement provides that, subject to
certain conditions set forth therein, the Seller may assign the Servicing
Agreement with respect to some or all of the Mortgage Loans (as such term is
defined in the Servicing Agreement). Without limiting the foregoing, IndyMac has
agreed, in Section 9.01 and Section 12.13 of the Servicing Agreement, to enter
into additional documents, instruments or agreements as may be reasonably
necessary in connection with any "Securitization Transaction" (as such term is
defined in the Servicing Agreement) contemplated by the Seller pursuant to the
Servicing Agreement;
WHEREAS, the Seller and IndyMac agree that (a) the transfer of the Serviced
Loans from Seller to the Depositor and from the Depositor to the Trustee to be
accomplished by the Pooling Agreement constitutes a Securitization Transaction
and (b) this Agreement shall constitute a "Reconstitution Agreement" (as such
term is defined in the Servicing Agreement) in connection with such
Securitization Transaction that shall govern the Serviced Loans for so long as
such Serviced Loans remain subject to the provisions of the Pooling Agreement;
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced Loans
on behalf of the Trustee and the Trust Fund, and shall have the right to
terminate the rights and obligations of IndyMac upon the occurrence and
continuance of an Event of Default under this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not defined in this Agreement (including Exhibit
One hereto) shall have the meanings ascribed to them in the Servicing Agreement.
ARTICLE II
SERVICING
IndyMac agrees, with respect to the servicing of the Serviced Loans, to
perform and observe the duties, responsibilities and obligations that are to be
performed and observed by the Company under the provisions of the Servicing
Agreement, except as otherwise provided herein and on Exhibit One hereto, and
that the provisions of the Servicing Agreement, as so modified, are and shall be
a part of this Agreement to the same extent as if set forth herein in full.
ARTICLE III
TRUST CUT-OFF DATE
The parties hereto acknowledge that by operation of Section 5.01 of the
Servicing Agreement (as modified by this Agreement) the remittance on January
18, 2007 to be made to the Trust Fund is to include all principal collections
due after December 1, 2006 (the "Trust Cut-off Date"), plus interest thereon at
the weighted average Mortgage Interest Rate collected during the Due Period
immediately preceding January 18, 2007, but exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, and taking into account
the adjustments specified in the first paragraph of Section 5.01 of the
Servicing Agreement.
ARTICLE IV
SERVICING FEE
Notwithstanding any provision of the Servicing Agreement to the contrary,
the Servicing Fee rate for the Serviced Loans shall be equal to 0.375% per annum
(the "Servicing Fee Rate"). The Servicing Fee shall be payable monthly from the
interest portion of the related Monthly Payment collected by the Servicer.
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ARTICLE V
RECOGNITION OF THE MASTER SERVICER AND THE TRUST FUND
(a) From and after the date hereof, IndyMac, and any successor servicer
hereunder, shall be subject to the supervision of the Master Servicer, which
Master Servicer shall be obligated to enforce IndyMac's obligation to service
the Serviced Loans in accordance with the provisions of this Agreement. IndyMac
shall recognize the Luminent Mortgage Trust 2006-7 Trust Fund (the "Trust Fund")
as the owner of the Serviced Loans, and IndyMac will service the Serviced Loans
for the Trust Fund as if the Trust Fund and IndyMac had entered into a separate
servicing agreement for the servicing of the Serviced Loans in the form of this
Agreement. Pursuant to the Pooling Agreement, the Master Servicer and the
Trustee shall have the same rights (but not the obligations, except to the
extent expressly set forth in the Pooling Agreement) as the Purchaser under the
Servicing Agreement to enforce the obligations of IndyMac, including, without
limitation, in the case of the Trustee, the enforcement of (i) the document
delivery requirements set forth in Section 2.03 of the Servicing Agreement and
(ii) remedies with respect to representations and warranties made by IndyMac in
the Servicing Agreement, and, in the case of the Master Servicer, shall be
entitled to enforce all of the obligations of IndyMac thereunder insofar as they
relate to the Serviced Loans. IndyMac shall look solely to the Trust Fund for
performance of any obligations of the Purchaser under the Servicing Agreement
and the Trust Fund hereby assumes such obligations. All references to the
Purchaser under the Servicing Agreement insofar as they relate to the Serviced
Loans, shall be deemed to refer to the Trust Fund. IndyMac shall not amend or
agree to amend, modify, waive, or otherwise alter any of the terms or provisions
of the Servicing Agreement which amendment, modification, waiver or other
alteration would in any way (i) materially affect the Serviced Loans or
IndyMac's performance under the Servicing Agreement with respect to the Serviced
Loans without the prior written consent of the Trustee and the Master Servicer
or (ii) materially and adversely affect the interests of the Certificateholders
in the Serviced Loans.
(b) The Master Servicer shall be entitled to terminate the rights and
obligations of IndyMac under this Agreement, as provided in Section 10.01
(Events of Default) of the Servicing Agreement. Notwithstanding anything herein
to the contrary, in no event shall the Master Servicer be required to assume any
of the obligations of the Purchaser under the Servicing Agreement; and in
entering into this Agreement, in connection with the performance by the Master
Servicer of any duties it may have hereunder, and in the exercise by the Master
Servicer of its rights the parties and other signatories hereto, except IndyMac,
agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability, immunities and indemnities afforded to
the Master Servicer under the Pooling Agreement. Without limitation of the
foregoing, any provision of the Servicing Agreement requiring the Seller or the
Trust Fund, as "Purchaser" under the Servicing Agreement, to reimburse IndyMac
for any costs or expenses shall be satisfied by IndyMac's reimbursement of such
costs or expenses from the Custodial Account.
(c) A copy of all assessments, attestations, reports and certifications
required to be delivered by IndyMac under this Agreement and the Servicing
Agreement shall be delivered to the Master Servicer by the date(s) specified
herein or therein, and where such documents are required to be addressed to any
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party, such addressees shall include the Master Servicer and the Master Servicer
shall be entitled to rely on such documents.
ARTICLE VI
WARRANTIES
Maia and IndyMac mutually warrant and represent that, with respect to the
Serviced Loans, the Servicing Agreement is in full force and effect as of the
date hereof and has not been amended or modified in any way with respect to the
Serviced Loans, except as set forth herein, and no notice of termination has
been given thereunder.
ARTICLE VII
REPRESENTATIONS
Pursuant to Section 9.0l(a) of the Servicing Agreement, IndyMac hereby
represents and warrants, for the benefit of Xxxxx, the Trustee and the Trust
Fund, that (i) the representations and warranties set forth in Section 3.01 of
the Servicing Agreement are true and correct as of December 27, 2006 (the
"Reconstitution Date"), as if such representations and warranties were made on
such date and (ii) the representations and warranties set forth in Section 3.02
of the Servicing Agreement are true and correct as of the related Closing Date
(as defined in the Servicing Agreement) as if such representations and
warranties were made on such date.
IndyMac hereby acknowledges and agrees that the remedies available to the
Trust Fund (including the Trustee acting on the Trust Fund's behalf) in
connection with any breach of the representations and warranties made by IndyMac
set forth above that materially and adversely affects the value of that Mortgage
Loan or the interests of the Purchaser in such Mortgage Loan shall be as set
forth in Subsection 3.03 of the Servicing Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein). Such enforcement of a right or remedy by the Trustee shall
have the same force and effect as if the right or remedy had been enforced or
exercised by the Trust Fund as Purchaser under the Servicing Agreement.
Each of the Serviced Loans has been conveyed to the Trustee pursuant to the
Pooling Agreement and Maia is not the originator of any of the Serviced Loans.
ARTICLE VIII
ASSIGNMENT
IndyMac hereby acknowledges that the rights of the Seller as "Purchaser"
under the Servicing Agreement as amended by this Agreement will be assigned to
Xxxxx, and by Xxxxx to the Trust Fund under the Pooling Agreement, and agree
that the Pooling Agreement will each be a valid assignment and assumption
agreement or other assignment document and will constitute a valid assignment
and assumption of the rights and obligations of the Seller as "Purchaser" under
the Servicing Agreement to Xxxxx and the Trustee, on behalf of the Trust Fund,
as applicable. In addition, the Trust Fund has made, or intends to make, a REMIC
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election. IndyMac hereby consents to such assignment and assumption and
acknowledges the Trust Fund's REMIC election.
ARTICLE IX
FULL RELEASE
The parties hereto acknowledge and agree that in connection with the
foregoing, the Seller is hereby fully released from all obligations to the
Servicer under the Servicing Agreement with respect to the Serviced Loans.
ARTICLE X
NOTICES AND REMITTANCES
(a) All notices, consents, certificates, reports and certifications
(collectively, "Written Information") required to be delivered to the Purchaser
under the Servicing Agreement and under this Agreement shall be delivered to the
Master Servicer at the following address:
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Group, Luminent 2006-7
(or in the case of overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 21045)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) All amounts required to be remitted or distributed by the Servicer to
the "Purchaser" under the Servicing Agreement and under this Agreement shall be
on a scheduled/scheduled basis and shall be made to the following wire account:
Xxxxx Fargo Bank, N.A.
ABA#: 000-000-000
Account Name: SAS CLEARING
Account Number: 0000000000
For further credit to: Luminent 2006-7, Account #00000000
(c) All Written Information required to be delivered to the Trustee under
the Servicing Agreement and under this Agreement shall be delivered to the
Trustee at the following address:
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HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trustee Luminent Mortgage Trust 2006-7
(d) All Written Information required to be delivered to the Depositor under
the Servicing Agreement and under this Agreement shall be delivered to the
Depositor at the following address:
Xxxxx Asset Securitization, Inc.
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(e) All demands, notices and communications required to be delivered to
IndyMac under the Servicing Agreement and this 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:
IndyMac Bank, F.S.B.
0000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing -- Transaction Management
Fax: (000) 000-0000
ARTICLE XI
GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
ARTICLE XII
AMENDMENT
The parties hereto hereby acknowledge and agree that the Servicing
Agreement shall not be amended without the consent of the Seller.
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ARTICLE XIII
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
ARTICLE XIV
RECONSTITUTION
IndyMac and the Seller agree that this Agreement is a Reconstitution
Agreement executed in connection with a Securitization Transaction and that
December 27, 2006 is the Reconstitution Date.
ARTICLE XV
LIMITED ROLE OF THE TRUSTEE
The Trustee shall have no obligations or duties under this Agreement except
as expressly set forth herein. No implied duties on the part of the Trustee
shall be read into this Agreement. Nothing herein shall be construed to be an
assumption by the Trustee of any duties or obligations of any party to this
Agreement or the Servicing Agreement, the duties of the Trustee being solely
those set forth in the Pooling Agreement. The Trustee is entering into this
Agreement solely in its capacity as Trustee under the Pooling Agreement and not
individually, and there shall be no recourse against the Trustee in its
individual capacity hereunder or for the payment of any obligations of the Trust
or the Trust Fund.
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IN WITNESS WHEREOF, the parties have caused this Reconstitution Agreement
to be executed by their duly authorized officers as of the date first above
written.
INDYMAC BANK, F.S.B., as Servicer
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Vice President
MAIA MORTGAGE FINANCE STATUTORY
TRUST, as Seller
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
XXXXX ASSET SECURITIZATION, INC., as
Depositor
By: /s/ X. Xxxxxxxxx Xxxxx
----------------------
Name: X. Xxxxxxxxx Xxxxx
Title: President
XXXXX FARGO BANK, N.A., as Master
Servicer and Securities Administrator
By: /s/ Xxx Xxxxx
-------------
Name: Xxx Xxxxx
Title: Vice President
Agreed to and acknowledged By:
HSBC BANK USA, NATIONAL ASSOCIATION
not in its individual capacity, but solely as Trustee for
Luminent Mortgage Trust 2006-7 under the Pooling
Agreement
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
[SIGNATURE PAGE - INDYMAC RECONSTITUTED SERVICING AGREEMENT - LUMINENT 2006-7]
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EXHIBIT ONE
Modifications to the Servicing Agreement
The Company and Seller hereby amend the Flow Sale and Servicing Agreement
with respect to the Assigned Loans as follows:
(a) The definition of "Business Day" in Article I is hereby amended in its
entirety to read as follows:
Business Day: Any day other than a Saturday or Sunday, or a day on
which banks and savings and loan institutions in the State of California,
the State of Maryland, the State of Minnesota or the State of New York are
authorized or obligated by law or executive order to be closed.
(b) A new definition of "Eligible Account" is hereby added to Article I
immediately following the definition of "Due Period" to be as defined in the
Pooling Agreement.
(c) The definition of "First Remittance Date" in Article I is hereby
amended in its entirety to read as follows:
First Remittance Date: January 18, 2007.
(d) A new definition of "Master Servicer" is hereby added to Article I
immediately following the definition of "Market Change" to read as follows:
Master Servicer: Xxxxx Fargo Bank, NA or any successor thereto.
(e) The definition of "Mortgage Loan Remittance Rate" is hereby amended in
its entirety to read as follows:
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Purchaser, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate; however; in respect
of the First Remittance Date only, with respect to each Serviced Loan listed on
Exhibit Two of the Reconstitution Agreement that is covered by a master
lender-paid private mortgage insurance policy, the Mortgage Loan Remittance Rate
shall be equal to one-twelfth of the total of (i) the related Mortgage Interest
Rate minus the sum of (ii) the Servicing Fee Rate and the master lender-paid
private mortgage insurance policy rate of 0.45%.
(f) The definition of "Opinion of Counsel" in Article I is hereby amended
in its entirety to read as follows:
Opinion of Counsel: A written opinion of counsel, who may be an
employee of IndyMac, that is reasonably acceptable to the Trustee and the
Master Servicer provided that any Opinion of Counsel relating to (a)
qualification of the Mortgage Loans in a REMIC or (b) compliance with the
REMIC Provisions, must be an opinion of counsel reasonably acceptable to
the Trustee, the Master Servicer and the Depositor who (i) is in fact
Exhibit One-1
independent of IndyMac, (ii) does not have any material direct or indirect
financial interest in IndyMac or in any affiliate of any such entity and
(iii) is not connected with IndyMac as an officer, employee, director or
person performing similar functions.
(g) The definition of "Permitted Investments" in Article I is hereby
amended in its entirety to read as follows:
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the trustee for the benefit of the
certificateholders acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the depositor, the trustee, the
master servicer, the securities administrator or any of their respective
affiliates or for which an affiliate serves as an advisor, will be considered a
permitted investment:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the trustee, the securities
administrator or the master servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, so long as, at the time of
such investment or contractual commitment providing for such investment,
such depository institution or trust company or its ultimate parent has a
short-term unsecured debt rating in one of the two highest available rating
categories of each rating agency rating the certificates and (B) any other
demand or time deposit or deposit account that is fully insured by the
FDIC;
(iii) repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or trust
company (acting as principal) rated A or higher by the rating agencies
rating the certificates;
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America, the District of Columbia or any State thereof and that are rated
by each rating agency rating the certificates in its highest long-term
unsecured rating categories at the time of such investment or contractual
commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) that is rated by each rating
agency rating the certificates in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds (which may be 12b-l funds, as
contemplated by the Commission under the Investment Company Act of 1940)
registered under the Investment Company Act of 1940 including funds managed
or advised by the trustee, the master servicer, the securities
Exhibit One-2
administrator or an affiliate thereof having the highest applicable rating
from each rating agency rating such funds; and
(vii) if previously confirmed in writing to the trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each rating agency rating the
certificates in writing as a permitted investment of funds backing
securities having ratings equivalent to its highest initial rating of the
senior certificates;
In each case (other than clause (a)), such Permitted Investment shall
have a final maturity (giving effect to any applicable grace period) no
later than the Business Day immediately preceding the Distribution Date
(or, if the Securities Administrator or an Affiliate is the obligor on such
Permitted Investment, the Distribution Date) next following the Due Period
in which the date of investment occurs; provided, that, Permitted
Investments may not include (i) any interest-only security, any security
purchased at a price in excess of 100% of the par value or any security
that provides for payment of both principal and interest with a yield to
maturity in excess of 120% of the yield to maturity at par, (ii) any
floating rate security whose interest rate is inversely or otherwise not
proportionately related to an interest rate index or is calculated as other
than the sum of an interest rate index plus a spread, (iii) securities
subject to an offer, (iv) any security with a rating from S&P which
includes the subscript "p," "pi," "q," "r" or "t", or (v) any investment,
the income from which is or will be subject to deduction or withholding for
or on account of any withholding or similar tax.
(h) The definition of "Rating Agency" in Article I is hereby amended in its
entirety to read as follows:
Rating Agency: Each of the rating agencies identified in the Pooling
Agreement, or any successor thereto.
(i) The definition of "Remittance Date" in Article I is hereby amended by
adding the following phrase at the beginning of the definition: "No later than
1:00 p.m. Eastern Time on"
(j) Subsection 3.03 (Repurchase) is hereby amended as follows:
(i) by replacing the words "the Purchaser and hold it" at the
beginning of the second line of the sixth paragraph with "Maia, the
Depositor, the Trustee, the Trust Fund and the Master Servicer and hold
each of them;"
(ii) by replacing each of the references to "the Purchaser" in the
last sentence of the sixth paragraph with "Maia, the Depositor, the
Trustee, the Trust Fund and the Master Servicer;" and
(iii) by replacing each of the references to "the Purchaser" in the
seventh paragraph of with "Maia, the Master Servicer, the Depositor or the
Trustee."
Exhibit One-3
(k) Subsection 3.04 (Repurchase of Mortgage Loans With First Payment
Defaults) is hereby amended by deleting ", at the Purchaser's option exercised
no later then ninety (90) days after the end of the related Holding Period,".
(l) Section 4.01 (Company to Act as Servicer) is hereby amended by adding
the following proviso after the second sentence of the first paragraph to read
as follows:
provided, however, that the Company shall not knowingly or
intentionally take any action, or fail to take (or fail to cause to be
taken) any action reasonably within its control and the scope of duties
more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, would cause any REMIC created under
the Pooling Agreement to fail to qualify as a REMIC or result in the
imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Trustee and the Master Servicer have received an Opinion
of Counsel (at the expense of the Seller reimbursable from funds in the
Custodial Account) to the effect that the contemplated action will not
cause any REMIC created under the Pooling Agreement to fail to qualify as a
REMIC or result in the imposition of a tax upon any such REMIC created
thereunder.
(m) Section 4.02 (Liquidation of Mortgage Loans) is hereby amended by
adding a final paragraph to that section that reads as follows:
Notwithstanding anything in this Servicing Agreement to the contrary,
for so long as the Master Servicer has not notified the Servicer that the
sole holder of the most subordinate class of certificates (the "Subordinate
Holder") is no longer entitled to the rights described in Exhibit L, the
Servicer shall follow the procedures set forth in Exhibit L in connection
with any Mortgage Loan that has become 60 or more days delinquent in
payment.
(n) Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows:
(i) by replacing the words "IndyMac Bank, F.S.B., in trust for [Name
of Purchaser] and/or subsequent purchasers of Mortgage Loans, and various
Mortgagors - P&I", with the words "IndyMac Bank, F.S.B., in trust for the
Trustee of Luminent Mortgage Trust 2006-7" in the first paragraph;
(ii) by replacing the sentence "The Custodial Account shall be
established with a Qualified Depository" with "The Custodial Account shall
be an Eligible Account."
(iii) by adding a new paragraph at the end of the section to read as
follows:
"Funds in the Custodial Account shall, if invested, be invested in
Permitted Investments; provided, however, that the Company shall be under
no obligation or duty to invest (or otherwise pay interest on) amounts held
in the Custodial Account. All Permitted Investments shall mature or be
subject to redemption or withdrawal no later than one Business Day prior to
the next succeeding Remittance Date (except that if such Permitted
Exhibit One-4
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Investment is an obligation of the Company, then such Permitted Investment
shall mature not later than such applicable Remittance Date). Any and all
investment earnings from any such Permitted Investment shall be for the
benefit of the Company and shall be subject to its withdrawal or order from
time to time, and shall not be part of the Trust Fund. The risk of loss of
moneys required to be remitted to the Master Servicer resulting from such
investments shall be borne by and be the risk of the Servicer. The Company
shall deposit the amount of any such loss in the Custodial Account
immediately as realized, but in no event later than the related Remittance
Date."
(o) Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by adding clause (xi) thereof to read as follows: to make payments to
the Securityholder in the amounts and in the manner provided for in Exhibit L.
(p) Section 4.06 (Establishment of and Deposits into Escrow Account) is
hereby amended as follows:
(i) by replacing the words "IndyMac Bank, F.S.B., in trust for [Name
of Purchaser] and/or subsequent purchasers of Mortgage Loans, and various
Mortgagors - T & I", with the words "IndyMac Bank, F.S.B., in trust for the
Trustee of Luminent Mortgage Trust 2006-7 and various Mortgagors - T & I"
in the first paragraph;
(ii) by replacing the sentence "The Escrow Account shall be
established with a Qualified Depository" with "The Escrow Account shall be
an Eligible Account."
(iii) by adding the following sentence after the last sentence of the
third paragraph as follows:
"The Company will be obligated to make Servicing Advances to the
Escrow Account in respect of its obligations under this Section 4.06,
reimbursable from the Escrow Accounts or Custodial Account to the extent
not collected from the related Mortgagor, anything to the contrary
notwithstanding, when and as necessary to pursuant to Section 4.08 hereof;
provided, however, that Servicing Advances shall not be required to be made
by the Company if such Servicing Advance would, if made, be, in the
Company's reasonable judgment, nonrecoverable."
(q) There shall be added after Section 4.15 a new Section 4.15A, to read as
follows:
Serviced Loans with an LTV =75% and =80% as noted on Exhibit Two of
the Reconstitution Agreement will be covered by a master lender-paid
private mortgage insurance policy issued by Triad Guaranty Insurance
Corporation ("Triad"). The Servicer shall not take any action that would
result in non-coverage under such policy which, but for the actions of the
Servicer, would have been covered thereunder. In connection with its
activities as servicer, the Servicer agrees to prepare and present, on
behalf of itself and the Trust Fund, claims to Triad under such policy in a
timely fashion in accordance with the terms of such policy and, in this
regard, to take such action as shall be necessary to permit recovery under
such policy respecting a defaulted serviced loan. Any amounts collected by
the Servicer under such policy shall be deposited
Exhibit One-5
in the Custodial Account, subject to withdrawal pursuant to Subsection 4.05
(as if such funds related to a PMI Policy).
(r) The third paragraph under Section 5.02 (Automated Servicing Systems and
Statements to Purchaser) is hereby amended to read as follows:
"Not later than the tenth calendar day of each month (or, if such 10th
day is not a Business Day, the immediately preceding Business Day) the
Company shall furnish to the Master Servicer in electronic format a
statement providing loan level accounting data, defaulted loan data and
realized loss and gain data for the period ending on the last Business Day
of the preceding month in the format attached as Exhibit M."
(s) Subsection 8.01 (Indemnification; Third Party Claims) is hereby amended
by replacing each of the references to "the Purchaser" in the paragraph with
"Maia, the Trust Fund, the Master Servicer, the Trustee and the Depositor."
(t) Subsection 8.04 (Limitations on Resignation and Assignment by Company)
is hereby amended as follows:
(i) by replacing the last reference to "each Purchaser" and "the
Purchasers" in the first paragraph and each reference to "each Purchaser"
in the second paragraph with "the Depositor, the Trustee, the Master
Servicer and each Rating Agency" and
(ii) by replacing the references to "each Purchaser" and "and
Purchaser" in the third paragraph with "the Master Servicer."
(u) Subsection 10.01 (Events of Default) is hereby amended as follows:
(i) by replacing each reference to "the Purchaser" with "the Master
Servicer;" and
(ii) by amending subclause (ii) by adding the phrase "provided,
however, that any breach of the provisions in the Regulation AB Compliance
Addendum attached to this Agreement as Exhibit K shall constitute an
immediate Event of Default for which no notice is required and no
opportunity to remedy shall be provided" after the words "shall have been
given to the Company by the Purchaser or by the Custodian."
(v) Subsection 10.02 (Waiver of Defaults) is hereby amended by replacing
the reference to "Purchasers" with "Master Servicer."
(w) Section 11.01 (Termination) is hereby amended as follows:
(i) by deleting the first paragraph of such section in its entirety
and replacing it with the following:
"The respective obligations and responsibilities of the Company shall
terminate upon the: (i) the later of the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or the
disposition of all REO Property and the remittance of all funds due
Exhibit One-6
hereunder; (ii) in accordance with Section 10.01 or (iii) in accordance
with Section 8.04."
(ii) by deleting the first sentence of the second paragraph of such
section and replacing it with the following:
"Upon written request from the Depositor or the Master Servicer in
connection with any such termination or any resignation, the Company shall,
at its expense, prepare, execute and deliver to the successor entity
designated by the Master Servicer any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not
limited to the transfer and endorsement or assignment of the Mortgage Loans
and related documents, at the Company's sole expense, as provided in
Article V of the Pooling Agreement."
(x) Section 12.01 (Successor to Company) is hereby amended as follows:
(i) by replacing the words "Prior to" with "Upon" at the beginning of
the first sentence of the first paragraph;
(ii) by replacing the reference to "Section 8.04, 10.01 or 11.01 (ii)"
with "Subsection 10.01" in the second line of the first paragraph;
(iii) by adding the words ", in accordance with the Pooling
Agreement," after the word "shall" in the second line of the first
paragraph;
(iv) by adding the following new sentence immediately after the first
sentence of the first paragraph to read as follows:
"Any successor to the Company shall be a FHLMC- or FNMA-approved
servicer and shall be subject to the approval of each Rating Agency, as
evidenced by a letter from each such Rating Agency delivered to the Trustee
and the Master Servicer that the transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of
the Certificates."
(v) by replacing the references to the "Purchaser" in the second and
eighth lines of the second paragraph with "the Master Servicer and the
Trustee;" and
(vi) by replacing the fourth paragraph thereof with the following
paragraph:
"Except as otherwise provided in this Section 12.01, all reasonable
costs and expenses incurred in connection with any transfer of servicing
hereunder (as a result of the termination or resignation of the Seller as
Servicer), including, without limitation, the costs and expenses of the
Master Servicer or any other Person in appointing a successor servicer, or
of the Master Servicer in assuming the responsibilities of the Company
hereunder, or transferring the Servicing Files and the other necessary
data, including the completion, correction or manipulation of such
servicing data as may be required to correct any errors or insufficiencies
Exhibit One-7
in the servicing data, to the successor servicer shall be paid by the
terminated or resigning Servicer from its own funds without reimbursement."
(y) Section 12.02 (Amendment) is hereby amended to read as follows:
"This Agreement may be amended only by written agreement signed by the
Company, the Depositor, the Master Servicer and the Trustee. The party
requesting such amendment shall, at its own expense, provide the Depositor,
the Master Servicer and the Trustee with an Opinion of Counsel that (i)
such amendment is permitted under the terms of this Agreement, (ii) the
Company has complied with all applicable requirements of this Agreement,
and (iii) such Amendment will not materially adversely affect the interest
of the Certificateholders in the Serviced Loans."
(z) A new Section 12.21 (Intended Third Party Beneficiary) is hereby added
to the Servicing Agreement to read as follows:
Section 12.21 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent
of such parties as set forth herein, that the Trustee, the Master Servicer
and the Depositor each receive the benefit of the provisions of this
Agreement as an intended third party beneficiary of this Agreement to the
extent of such provisions. The Company shall have the same obligations to
the Trustee, the Master Servicer and the Depositor as if the Trustee, the
Master Servicer and the Depositor were each a party to this Agreement, and
the Trustee, the Master Servicer and the Depositor each shall have the same
rights and remedies to enforce the provisions of this Agreement as if it
were a party to this Agreement. The Company shall only take directions from
the Master Servicer (if direction by the Master Servicer is required under
this Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of the Trustee,
the Master Servicer and the Depositor hereunder (other than the right to
indemnification and the indemnification obligations, as applicable) shall
terminate upon termination of the Trust Fund pursuant to the Pooling
Agreement.
(aa) Subsection 2.06(a) of Exhibit K is hereby amended by adding the words
", any Master Servicer" after the word "Purchaser" in the last sentence of such
section and by adding the words "and certification" after the word "attestation"
in the last sentence of such section.
(bb) Subsection 13.06(b) of Exhibit K is hereby amended by adding the words
"(and in any event within five days after any such request)" after the words
"promptly upon request" in the second sentence of the first paragraph of such
section and by adding ", any Master Servicer" after the word "Purchaser" in the
last sentence of the second paragraph of such section and by adding the words
"and certification" after the word "attestation" in the last sentence of the
second paragraph of such section.
(cc) Exhibit Four attached hereto is hereby added to the Servicing
Agreement as Exhibits M, N and O.
Exhibit One-8
(dd) Exhibit L is hereby deleted in its entirety and replaced with the
provisions attached hereto as Exhibit Five.
Exhibit One-9
EXHIBIT TWO
List of Serviced Loans
To be retained in a separate closing binder entitled "Luminent 2006-7 Mortgage
Loan Schedule" at the Washington DC offices of Hunton & Xxxxxxxx LLP
Exhibit Two-1
EXHIBIT THREE
Servicing Agreement
On File with Hunton & Xxxxxxxx LLP
Exhibit Three-1
EXHIBIT FOUR
Form of Periodic Reports to Purchaser
Exhibit M
Standard File Layout - Master Servicing
-----------------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
-----------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan by the investor.
-----------------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan 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. Maximum length of 30 (Last, 30
It is not separated by first and last name. First)
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar 11
interest payment that a borrower is signs ($)
expected to pay, P&I constant.
-----------------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less the service 4 Max length of 6 6
fee rate as reported by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan as reported 4 Max length of 6 6
by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a loan as reported 2 No commas(,) or dollar 11
by the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as reported by 2 No commas(,) or dollar 11
the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
-----------------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to calculate 4 Max length of 6 6
a forecasted rate.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar 11
the beginning of the processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar 11
the end of the processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that MM/DD/YYYY 10
the borrower's next payment is due to the
Servicer, as reported by Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
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 11
amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
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 11
amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($
-----------------------------------------------------------------------------------------------------------------------------------
Exhibit Four-1
-----------------------------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
-----------------------------------------------------------------------------------------------------------------------------------
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 11
amount, if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as reported by the 2 No commas(,) or dollar 11
Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
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 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, 2 No commas(,) or dollar 11
if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar 11
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, 2 No commas(,) or dollar 11
if applicable. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due 2 No commas(,) or dollar 11
at the beginning of the cycle date to be passed signs ($)
through to investors.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance due to investors 2 No commas(,) or dollar 11
at the end of a processing cycle. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as reported by 2 No commas(,) or dollar 11
the Servicer for the current cycle -- only signs ($)
applicable for Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar 11
service fee amount for the current cycle as signs ($)
reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar 11
Servicer for the current reporting cycle -- signs ($)
only applicable for Actual/Actual Loans.
-----------------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar 11
service fee amount for the current reporting signs ($)
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 11
prepays on his loan as reported by the Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar 11
waived by the servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the Modification MM/DD/YYYY 10
for the loan.
-----------------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be alpha 30
or numeric
-----------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or dollar 11
advances made by Servicer. signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
Exhibit Four-2
Exhibit N: Standard File Layout - Delinquency Reporting
-----------------------------------------------------------------------------------------------------------------
Column 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
MM/DD/YYYY at the end of
processing cycle, as reported by
Servicer.
-----------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-----------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
-----------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
-----------------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
-----------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By MM/DD/YYYY
The Servicer
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled MM/DD/YYYY
To End/Close
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter MM/DD/YYYY
to the servicer with instructions
to begin foreclosure
proceedings.
-----------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
-----------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or dollar
sale. signs
------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
------------------------------------------------------------------------------------------------------------------
Exhibit Four-3
-----------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the borrower.
-----------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
-----------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
-----------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
-----------------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is occupied.
-----------------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of the property.
-----------------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection 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 2
on brokers price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a broker's
price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------
If applicable:
-----------------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-----------------------------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan.
Code indicates the reason why the
loan is in default for this cycle.
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued MM/DD/YYYY
By The Pool Insurer
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
Exhibit Four-4
-----------------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment
-----------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED-DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or dollar
signs ($)
------------------------------------------------------------------------------------------------------------------
Exhibit Four-5
PAGE>
Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit Four-6
Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
------------------------------------------------------------------------------------
Delinquency Code Delinquency Description
------------------------------------------------------------------------------------
001 FNMA-Death of principal mortgagor
------------------------------------------------------------------------------------
002 FNMA-Illness of principal mortgagor
------------------------------------------------------------------------------------
003 FNMA-Illness of mortgagor's family member
------------------------------------------------------------------------------------
004 FNMA-Death of mortgagor's family member
------------------------------------------------------------------------------------
005 FNMA-Marital difficulties
------------------------------------------------------------------------------------
006 FNMA-Curtailment of income
------------------------------------------------------------------------------------
007 FNMA-Excessive Obligation
------------------------------------------------------------------------------------
008 FNMA-Abandonment of property
------------------------------------------------------------------------------------
009 FNMA-Distant employee transfer
------------------------------------------------------------------------------------
011 FNMA-Property problem
------------------------------------------------------------------------------------
012 FNMA-Inability to sell property
------------------------------------------------------------------------------------
013 FNMA-Inability to rent property
------------------------------------------------------------------------------------
014 FNMA-Military Service
------------------------------------------------------------------------------------
015 FNMA-Other
------------------------------------------------------------------------------------
016 FNMA-Unemployment
------------------------------------------------------------------------------------
017 FNMA-Business failure
------------------------------------------------------------------------------------
019 FNMA-Casualty loss
------------------------------------------------------------------------------------
022 FNMA-Energy environment costs
------------------------------------------------------------------------------------
023 FNMA-Servicing problems
------------------------------------------------------------------------------------
026 FNMA-Payment adjustment
------------------------------------------------------------------------------------
027 FNMA-Payment dispute
------------------------------------------------------------------------------------
029 FNMA- Transfer of ownership pending
------------------------------------------------------------------------------------
030 FNMA-Fraud
------------------------------------------------------------------------------------
031 FNMA-Unable to contact borrower
------------------------------------------------------------------------------------
INC FNMA-Incarceration
------------------------------------------------------------------------------------
Exhibit Four-7
Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
--------------------------------------------------------------------------------------------
Status Code Status Description
--------------------------------------------------------------------------------------------
09 Forbearance
--------------------------------------------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
--------------------------------------------------------------------------------------------
24 Government Seizure
--------------------------------------------------------------------------------------------
26 Refinance
--------------------------------------------------------------------------------------------
27 Assumption
--------------------------------------------------------------------------------------------
28 Modification
--------------------------------------------------------------------------------------------
29 Charge-Off
--------------------------------------------------------------------------------------------
30 Third Party Sale
--------------------------------------------------------------------------------------------
31 Probate
--------------------------------------------------------------------------------------------
32 Military Indulgence
--------------------------------------------------------------------------------------------
43 Foreclosure Started
--------------------------------------------------------------------------------------------
44 Deed-in-Lieu Started
--------------------------------------------------------------------------------------------
49 Assignment Completed
--------------------------------------------------------------------------------------------
61 Second Lien Considerations
--------------------------------------------------------------------------------------------
62 Veteran's Affairs-No Bid
--------------------------------------------------------------------------------------------
63 Veteran's Affairs-Refund
--------------------------------------------------------------------------------------------
64 Veteran's Affairs-Buydown
--------------------------------------------------------------------------------------------
65 Chapter 7 Bankruptcy
--------------------------------------------------------------------------------------------
66 Chapter 11 Bankruptcy
--------------------------------------------------------------------------------------------
67 Chapter 13 Bankruptcy
--------------------------------------------------------------------------------------------
Exhibit Four-8
Exhibit O: Calculation of Realized Loss/Gain Form 332-Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance report
date. Late submissions may result in claims not being passed until the following
month. The Servicer is responsible to remit all funds pending loss approval
and/or resolution of any disputed items.
(i) The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as agreed.
For documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
o For taxes and insurance advances - see page 2 of 332 form - breakdown
required showing period of coverage, base tax, interest, penalty. Advances
prior to default require evidence of servicer efforts to recover advances.
o For escrow advances - complete payment history (to calculate advances from
last positive escrow balance forward)
o Other expenses - copies of corporate advance history showing all payments
o REO repairs> $1500 require explanation
o REO repairs >$3000 require evidence of at least 2 bids.
o Short Sale or Charge Off require P&L supporting the decision and WFB's
approved Officer Certificate
o Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
(ii) Credits:
Exhibit Four-9
14-21. Complete as applicable. Required documentation:
o Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions
and Escrow Agent / Attorney
o Letter of Proceeds Breakdown.
o Copy of EOB for any MI or gov't guarantee
o All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized show the amount in parenthesis ( ).
Exhibit Four-10
Calculation of Realized Loss/Gain Form 332
Prepared by: ________________________ Date:__________________
Phone: _______________________________ Email Address: ________________________
----------------- ------------- -----------------
Servicer Loan No. Servicer Name Servicer Address
----------------- ------------- -----------------
XXXXX FARGO BANK, N.A. Loan No. ____________________________________________
Borrower's Name: _____________________________________________________________
Property Address: ____________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cram down amount ______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ _________ (1)
(2) Interest accrued at Net Rate _________ (2)
(3) Accrued Servicing Fees _________ (3)
(4) Attorney's Fees _________ (4)
(5) Taxes (see page 2) _________ (5)
(6) Property Maintenance _________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) _________ (7)
(8) Utility Expenses _________ (8)
(9) Appraisal/BPO _________ (9)
(10) Property Inspections _________ (10)
(11)FC Costs/Other Legal Expenses _________ (11)
(12) Other (itemize) _________ (12)
Cash for Keys _________ (12)
HOA/Condo Fees _________ (12)
__________________ _________ (12)
Total Expenses $ _________ (13)
Credits:
(14) Escrow Balance $ _________ (14)
(15)HIP Refund _________ (15)
(16) Rental Receipts _________ (16)
(17)Hazard Loss Proceeds _________ (17)
Exhibit Four-11
(18) Primary Mortgage Insurance/Gov't Insurance HUD Part A _________ (18a)
HUD Part B _________ (18b)
(19) Pool Insurance Proceeds _________ (19)
(20) Proceeds from Sale of Acquired Property _________ (20)
(21) Other (itemize) _________ (21)
__________________ _________
Total Credits $ _________ (22)
Total Realized Loss (or Amount of Gain) $ _________ (23)
Exhibit Four-12
Escrow Disbursement Detail
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Type Date Paid Period of Total Paid Base Penalties Interest
(Tax/Ins.) Coverage Amount
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Exhibit Four-13
Exhibit 99.5
EXHIBIT FIVE
Special Foreclosure Rights Section
For purposes of this Exhibit Five, the term "Securityholder" shall mean the
entity that holds a majority interest in the most subordinated class of
securities issued in the securitization outstanding from time to time.
(a) The Company shall monthly provide a list to the Securityholder and the
Master Servicer of all Mortgage Loans 60 or more days delinquent. With respect
to any Mortgage Loans that are 90 or more days delinquent, the Company shall
provide its proposed resolution of such Mortgage Loan - whether through
foreclosure, deed-in-lieu thereof, modification or forbearance, sale of the
Mortgage Loan or related Mortgaged Property, or otherwise. In conjunction with
such recommendations, the Company shall advise in writing the Securityholder and
the Master Servicer of any bona fide offer to purchase a Mortgage Loan or
related Mortgaged Property.
(b) Prior to taking action with respect to any delinquent Mortgage Loan
that is more than 60 days delinquent, the Company shall notify both the Master
Servicer and the Securityholder of its proposed course of action, but it shall
not take such action unless the Securityholder does not, within a five-Business
Day period, affirmatively object to such action.
(c) If the Securityholder timely and affirmatively objects to an action or
contemplated action of the Company pursuant to section (b) above, then the
Securityholder shall instruct the Master Servicer in writing (with a copy to the
Company) to hire three appraisal firms selected by the Master Servicer in its
reasonable discretion, to compute the fair value of the Mortgaged Property
securing the related Mortgage Loan utilizing the Xxxxxx Xxx Form 2055
Exterior-Only Inspection Residential Appraisal Report (each such appraisal-firm
computation, a "Fair Value Price"), in each case no later than 30 days from the
date of such Securityholder objection. The Company shall be obligated to provide
the Master Servicer with contact information for no less than five local
appraisal firms within three Business Days of receiving the affirmative
objection of the Securityholder. All costs relating to the computation of the
Fair Value Prices shall be for the account of the Securityholder and shall be
paid by the Securityholder at the time that such Mortgage Loan is purchased by
the Securityholder.
(i) If the Master Servicer shall have received three Fair Value Prices
by the expiration of such 30-day period, then the Securityholder shall, no
later than five Business after the expiration of such 30-day period,
purchase such Mortgage Loan for an amount equal to the lesser of (i) the
unpaid principal balance of the related Mortgage Loan (the "Unpaid
Principal Balance") and (ii) the average of such three Fair Value Prices
respectively determined by such appraisal firms; and shall deliver such
amount to the Company against the assignment of the related Mortgage Loan
and the delivery of the related documents on the purchase date.
(ii) If the Master Servicer shall not have received three Fair Value
Prices by the end of the 30-day period set forth in paragraph (c)(i) above,
then:
(1) If the Master Servicer shall have received only two Fair
Value Prices by the end of such 30-day period, then the Master
Servicer shall determine, in its reasonable discretion, the fair value
of the Mortgaged Property and other collateral relating to such
Mortgage Loan (such fair value, the "Master Servicer's Fair Value
Price") and the Securityholder shall, no later than five Business Days
after the expiration of such 30-day period, purchase such Mortgage
Loan for an amount equal to the least of (1) the Unpaid Principal
Balance thereof, (2) the average of such Fair Value Prices determined
by such appraisal firms and (3) the Master Servicer's Fair Value
Price; and shall deliver such amount to the Company against the
assignment of the related Mortgage Loan and the delivery of the
related documents on the purchase date.
(2) If the Master Servicer shall have received only one Fair
Value Price by the end of such 30-day period, then the Master Servicer
will determine the Master Servicer Fair Value Price of the Mortgaged
Property related to such Mortgage Loan and the Securityholder shall,
no later than five Business Days after the expiration of such 30-day
period, purchase such Mortgage Loan for an amount equal to the least
of (1) the Unpaid Principal Balance thereof, (2) the Fair Value Price
determined by such appraisal firm and (3) the Master Servicer's Fair
Value Price; and shall deliver such amount to the Company against the
assignment of the related Mortgage Loan and the delivery of the
related documents on the purchase date.
(3) If the Master Servicer shall not have received any such Fair
Value Prices by the end of such 30-days period, then the Master
Servicer will determine the Master Servicer Fair Value Price of the
Mortgaged Property related to such Mortgage Loan and the
Securityholder shall, no later than five Business Days after the
expiration of such 30-day period, purchase such Mortgage Loan for an
amount equal to the lesser of (1) the Unpaid Principal Balance thereof
and (2) the Master Servicer's Fair Value Price; and shall deliver such
amount to the Company against the assignment of the related Mortgage
Loan and the delivery of the related documents on the purchase date.
(4) If the Master Servicer has not received three Fair Value
Prices by the end of such 30-day period, it shall continue for the
next 30 days to try to obtain three Fair Value Prices. Upon the
earlier of the date that it obtains the three Fair Value Prices, or
the end of the 30-day extension, the Master Servicer shall recalculate
the price payable pursuant to this Agreement and, within five Business
Days thereafter, (i) the Securityholder shall pay the Company the
positive difference between the recalculated purchase price, and the
price actually paid by it, or (ii) the Company shall refund to the
Securityholder the positive difference between the purchase price
actually paid by the Securityholder, and the recalculated purchase
price.
Exhibit Five-2
(d) Notwithstanding anything herein to the contrary, the
Securityholder shall not be entitled to any of its rights set forth
herein with respect to a Mortgage Loan following its failure to
purchase such Mortgage Loan at the purchase price set forth above
within the timeframe set forth above following the Securityholder's
objection to an action of the Company, and the Company shall provide
the Master Servicer written notice of such failure.
(e) Any notice, confirmation, instruction or objection pursuant
to paragraphs (a) or (b) above may be delivered via facsimile or other
written or electronic communication as the parties hereto and the
Securityholder may agree to from time to time.
(f) For the avoidance of doubt, the Securityholder's rights set
forth in this Addendum are intended to provide the Securityholder, for
so long as it has not forfeited its right under paragraph (d) hereof
as set forth in paragraph (c) above, with the unilateral right to
control foreclosure decisions in respect of delinquent and defaulted
Mortgage Loans, and certain exclusive purchase rights so as to
maximize the recovery value on delinquent and defaulted Mortgage
Loans.
(g) To the extent that the Securityholder purchases any Mortgage
Loan pursuant to this Addendum, the Company will continue to service
such Mortgage Loan in accordance with this Agreement. The parties
acknowledge that, in such event, the Securityholder will have no duty
or responsibility to service any such Mortgage Loan and that the
Master Servicer will have no duty or responsibility to master service
any such Mortgage Loan.
(h) In the event that the Securityholder purchases any Mortgage
Loan pursuant to this Addendum, the Company and the Securityholder
will work together in good faith to take any and all actions necessary
to effect such purchase, including, but not limited to, the
preparation and execution of any endorsements or assignments of the
Mortgage Loan documents, all at the expense of the Securityholder.
(i) The Master Servicer shall promptly deliver any written
notices that it receives under this Addendum to the Securityholder.
Exhibit Five-3
