ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) made
as of March 30, 2007, among EMC Mortgage Corporation (the “Assignor”), U.S. Bank
National Association, not individually but solely as trustee for the holders
of
the Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1
(the
“Assignee”) and Wachovia Mortgage Corporation (the “Seller”).
In
consideration of the mutual promises
contained herein the parties hereto agree that the residential mortgage loans
(the “Assigned Loans”) listed on Attachment 1 annexed hereto (the “Assigned Loan
Schedule”) purchased by Assignor from Seller pursuant to (a) the Purchase,
Warranties and Servicing Agreement, dated as of July 1, 2005, between Assignor
and Seller, as amended by Regulation AB Compliance Addendum to Seller’s
Purchase, Warranties and Servicing Agreement (the “Addendum”), dated as of March
28, 2006 (as amended, the “Purchase Agreement”) and (b) the Assignment and
Conveyance Agreement dated December 20, 2005, between Assignor and Seller (the
“Assignment and Conveyance Agreement”; and together with the Purchase Agreement,
the “Agreements”), shall be subject to the terms of this AAR Agreement.
Capitalized terms used herein but not defined shall have the meanings ascribed
to them in the Agreements.
Assignment
and Assumption
Except
as
expressly provided for herein, the Assignor hereby grants, transfers and assigns
to the Assignee all of its right, title and interest as in, to and under (a)
the
Assigned Loans and (b) the Agreements with respect to the Assigned Loans;
provided, however, that the Assignor is not assigning to the Assignee any of
its
right, title or interest, in, to and under the Agreements with respect to any
mortgage loan other than the Assigned Loans listed on Attachment
1. Notwithstanding anything to the contrary contained herein, the
Assignor specifically reserves and does not assign to the Assignee any right,
title and interest in, to or under the representations and warranties contained
in Section 3.01 and Section 3.02 of the Purchase Agreement and in the Assignment
and Conveyance Agreement, the additional repurchase and premium recapture
obligations set forth in the Assignment and Conveyance Agreement, and any
obligation of the Seller to cure, repurchase or substitute for a mortgage loan
and to indemnify the Assignor with respect to a breach of such representations
and warranties pursuant to Section 3.03 and Section 8.01 of the Purchase
Agreement, and the Assignor is retaining the right to enforce the
representations and warranties and the obligations of the Seller set forth
in
those sections against the Seller. In addition, the Assignor
specifically reserves and does not assign to the Assignee any right, title
and
interest in, to or under Section 2.09 of the Purchase Agreement. Except
as
is otherwise expressly provided herein, the Assignor makes
no
representations, warranties or covenants to the Assignee and the Assignee
acknowledges that the Assignor has no obligations to the Assignee under the
terms of the Agreements or otherwise relating to the transaction contemplated
herein (including, but not limited to, any obligation to indemnify the
Assignee).
Representations,
Warranties and Covenants
1. Assignor
warrants and represents to Assignee and Seller as of the date
hereof:
(a) Attached
hereto as Attachment 2 are true and accurate copies of the Agreements which
agreements are in full force and effect as of the date hereof and the provisions
of which have not been waived, amended or modified in any respect, nor has
any
notice of termination been given thereunder;
(b) Assignor
is the lawful owner of the Assigned Loans with full right to transfer the
Assigned Loans and any and all of its interests, rights and obligations under
the Agreements as they relate to the Assigned Loans, free and clear from any
and
all claims and encumbrances; and upon the transfer of the Assigned Loans to
Assignee as contemplated herein, Assignee shall have good title to each and
every Assigned Loan, as well as any and all of Assignor’s interests, rights and
obligations under the Agreements as they relate to the Assigned Loans, free
and
clear of any and all liens, claims and encumbrances;
(c) There
are
no offsets, counterclaims or other defenses available to Seller with respect
to
the Assigned Loans or the Agreements;
(d) Assignor
has no knowledge of, and has not received notice of, any waivers under, or
any
modification of, any Assigned Loan;
(e) Assignor
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
acquire, own and sell the Assigned Loans;
(f) Assignor
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Assignor’s charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor 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 Assignor or its property is subject. The
execution, delivery and performance by Assignor of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of
Assignor. This AAR Agreement has been duly executed and delivered by
Assignor and, upon the due authorization, execution and delivery by Assignee
and
Seller, will constitute the valid and legally binding obligation of Assignor
enforceable against Assignor 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;
(g) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
Assignor in connection with the execution, delivery or performance by Assignor
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(h) Neither
Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold
or otherwise disposed of the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, or any interest in the Assigned Loans or
otherwise approached or negotiated with respect to the Assigned Loans, or any
interest in the Assigned Loans with any Person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Assigned
Loans under the Securities Act of 1933, as amended (the “1933 Act”) or which
would render the disposition of the Assigned Loans a violation of Section 5
of
the 1933 Act or require registration pursuant thereto;
(i) The
Assignor has received from Seller, and has delivered to the Assignee, all
documents required to be delivered to Assignor by the Seller prior to the date
hereof pursuant to Section 2.07 of the Purchase Agreement with respect to the
Assigned Loans and has not received, and has not requested from the Seller,
any
additional documents; and
(j) There
is
no action, suit, proceeding, investigation or litigation pending or, to
Assignor's knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignor's ability to perform its obligations under this
AAR
Agreement.
2. Assignee
warrants and represents to, and covenants with, Assignor and Seller as of the
date hereof:
(a) Assignee
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization and has all requisite power and authority
to
hold the Assigned Loans as trustee on behalf of the holders of the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1;
(b) Assignee
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Assignee’s charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignee 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 Assignee or its property is subject. The
execution, delivery and performance by Assignee of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have been
duly
authorized
by all necessary corporate action on part of Assignee. This AAR Agreement has
been duly executed and delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and Seller, will constitute the valid and
legally binding obligation of Assignee enforceable against Assignee 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;
(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
Assignee in connection with the execution, delivery or performance by Assignee
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(d) There
is
no action, suit, proceeding, investigation or litigation pending or, to
Assignee's knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignee's ability to perform its obligations under this
AAR
Agreement; and
(e) Assignee
assumes for the benefit of each of the Assignor and the Seller all of the rights
of the Purchaser under the Purchase Agreement with respect to the Assigned
Loans.
3. Seller
warrants and represents to, and covenant with, Assignor and Assignee as of
the
date hereof:
(a) Attached
hereto as Attachment 2 are true and accurate copies of the Agreements, which
agreements are in full force and effect as of the date hereof and the provisions
of which have not been waived, amended or modified in any respect, nor has
any
notice of termination been given thereunder;
(b) Seller
is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all requisite power and authority
to
service the Assigned Loans and otherwise to perform its obligations under the
Agreements;
(c) Seller
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by
this AAR Agreement is in the ordinary course of Seller’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Seller’s charter or by-laws or any legal restriction, or any
material agreement or instrument to which Seller 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 Seller or its property is subject. The
execution, delivery and performance by Seller of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Seller. This AAR
Agreement has been duly executed and delivered by Seller, and, upon the due
authorization, execution and delivery by Assignor and Assignee, will constitute
the valid and legally binding obligation of Seller, enforceable against Seller
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;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
Seller in connection with the execution, delivery or performance by Seller
of
this AAR Agreement, or the consummation by it of the transactions contemplated
hereby;
(e) The
Seller shall establish a Custodial Account and an Escrow Account under the
Purchase Agreement in favor of the Assignee with respect to the Assigned Loans
separate from the Custodial Account and Escrow Account previously established
under the Purchase Agreement in favor of Assignor;
(f) No
event
has occurred from the Closing Date to the date hereof which would render the
representations and warranties as to the related Assigned Loans made by the
Seller in Sections 3.01 [and 3.02] of the Purchase Agreement or in the related
Assignment and Conveyance Agreement to be untrue in any material respect;
and
(g) Neither
this AAR Agreement nor any certification, statement, report or other agreement,
document or instrument furnished or to be furnished by the Seller pursuant
to
this AAR Agreement contains or will contain any materially untrue statement
of
fact or omits or will omit to state a fact necessary to make the statements
contained therein not misleading.
4. The
Seller hereby restates the representations and warranties set forth in Section
2.02 of the Addendum (with the information pertaining to Section 2.02(a)(vii)
specified in Attachment 3 hereto) as of the date of hereof.
Notwithstanding
anything to the
contrary in the Agreement, the Seller shall (or shall cause any Third-Party
Originator to) (i) immediately notify Assignor and Structured Asset Mortgage
Investments II Inc. (“XXXX XX”) in writing of (A) legal proceedings pending
against the Seller, or proceedings known to be contemplated by governmental
authorities against the Seller which in the judgment of the Seller would be,
in
each case, material to purchasers of securities backed by the Assigned Loans,
(B) any affiliations or relationships of the type described in Item 1119(b)
of
Regulation AB that develop following the date hereof between the Seller and
any
of the above listed parties or other parties identified in writing by the
Assignor or XXXX XX with respect to the Securitization Transaction and (ii)
provide to the Assignor and XXXX XX a description of such proceedings,
affiliations or relationships.
Each
such
notice/update should be sent to the Assignor by e-mail to
xxxXXxxxxxxxxxxxxx@xxxx.xxx. Additionally, all such notifications,
other than those pursuant to (i)(A) above, should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention: Xxxxxxxx
Xxxxx
Facsimile: (000)
000-0000
Email: xxxxxx@xxxx.xxx
With
a
copy to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Global
Credit Administration
Facsimile: (000)
000-0000
Notifications
pursuant to (i)(A) above should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
With
copies to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Global
Credit Administration
Facsimile: (000)
000-0000
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000-0000
Attention: Xxxxxxxx
Xxxxx
Facsimile: (000)
000-0000
Email: xxxxxx@xxxx.xxx
5. Assignor
hereby agrees to indemnify and hold the Assignee (and its successors and
assigns) harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that Assignee (and its successors and assigns) may sustain in
any
way related to any breach of the representations or warranties of Assignor
set
forth in this AAR Agreement or the breach of any covenant or condition contained
herein.
Recognition
of Assignee
6. From
and
after the date hereof, Seller shall recognize Assignee as owner of the Assigned
Loans, and acknowledges that the Assigned Loans will be part of a REMIC, and
will service the Assigned Loans in accordance with the Purchase Agreement (as
modified by this AAR Agreement) but in no event in a manner that would (i)
cause
any REMIC to fail to qualify as a REMIC or (ii) result in the imposition of
a
tax upon any REMIC (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). It is the
intention of Assignor, Seller and Assignee that this AAR Agreement shall be
binding upon and for the benefit of the respective successors and assigns of
the
parties hereto. Neither Seller nor Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the Purchase
Agreement which amendment, modification, waiver or other alteration would in
any
way affect the Assigned Loans without the prior written consent of
Assignee.
7. [The
Seller shall prepare for and deliver to the Assignee and the Master Servicer
(and the securities administrator, if any) a statement with respect to each
mortgaged property acquired through foreclosure or deed-in-lieu of foreclosure
in connection with a defaulted Assigned Loan (“REO Property”) that has been
rented showing the aggregate rental income received and all expenses incurred
in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Assignee (or the securities administrator,
if any) to comply with the reporting requirements of the REMIC provisions of
the
Code. The net monthly rental income, if any, from such REO Property shall be
deposited in the related collection account no later than the close of business
on each determination date. The Seller shall perform, or caused to be
performed, the tax reporting and withholding related to foreclosures,
abandonments and cancellation of indebtedness income as specified by Sections
1445, 6050J and 6050P of the Code by preparing and filing such tax and
information returns, as may be required. In the event that the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 acquires
any
REO Property as aforesaid or otherwise in connection with a default or default
becoming reasonably foreseeable on an Assigned Loan, the Seller shall cause
such
REO Property to be disposed prior to three years after its acquisition by the
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 or,
at
the expense of the Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2007-1, request more than 60 days prior to the day on which such
three-year period would otherwise expire, an extension of the three-year grace
period unless the Assignee (or the securities administrator, if any) shall
have
been supplied with an opinion of counsel addressed to the Assignee (and the
securities administrator, if any) rendered by nationally recognized tax counsel
specializing in such matters (such opinion not to be an expense of the Trustee
or the Securities Administrator) to the effect that the holding by the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 of such REO
Property subsequent to such three-year period will not result in the imposition
of taxes on “prohibited transactions” of any REMIC as defined in Section 860F of
the Code or cause any REMIC to fail to qualify as a REMIC, in which case the
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 may
continue to hold such REO Property (subject to any conditions contained in
such
opinion of counsel). Notwithstanding any other provision of the Servicing
Agreement, no REO Property acquired by the Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-1 shall be rented (or allowed to continue
to be rented) or otherwise used for the production of income by or on behalf
of
the Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1
in
such a manner or pursuant to any terms that would (i) cause such REO Property
to
fail to qualify as “foreclosure property” within the meaning of Section
860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any
federal, state or local income taxes on the income earned from such REO Property
under Section 860G(c) of the Code or otherwise, unless the Seller has agreed
to
indemnify and hold harmless the Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1 with respect to the imposition of any such
taxes.]
8. In
addition, the Seller hereby acknowledges that from and after the date hereof,
the Mortgage Loans will be subject to the terms and conditions of
the pooling and servicing agreement pursuant to which the Master
Servicer is required to monitor the performance by the Seller of its servicing
obligations under the Agreements and has the right to enforce the obligations
of
the Seller under the Agreements with respect to the servicing of the Mortgage
Loans. Such right will include, without limitation, the right to
terminate the Seller under the Agreements upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made
by
the Seller under the Agreements, the right to receive all monthly reports and
other data required to be delivered by the Seller under the Agreements, the
right to examine the books and records of the Seller, indemnification rights,
and the right to exercise certain rights of consent and approval relating to
actions taken by the Seller. In connection therewith, the Seller
hereby agrees to make all remittances required under the Agreements with respect
to the Mortgage Loans to the Master Servicer for the benefit of the Assignee
in
accordance with the following wire transfer instructions:
EMC
Master Servicing Remittances
Bank: Chase
Bank of Texas
Branch: Irving,
Texas
Account
Name: EMC Mortgage Corporation
ABA
#
000000000
ACCOUNT
#
000000709377717
Reference:
M/S Remittance March 1, 2007 Remit for Wachovia Mortgage
Corporation
Attention: LSBO
Group-MS
9. Notwithstanding
any term hereof to the contrary, the execution and delivery of the AAR Agreement
by the Assignee is solely in its capacity as trustee for Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-1 and not individually, and
any
recourse against the Assignee in respect of any obligations it may have under
or
pursuant to the terms of this AAR Agreement shall be limited solely to the
assets it may hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1.
Modification
of Purchase Agreement
10. The
Seller and Assignor hereby amend the Purchase Agreement as follows:
(a) The
definition of Business Day is deleted in its entirety and replaced with the
following:
Business
Day: Any day other than (i) a Saturday or a Sunday, or (ii) a legal holiday
in the States of New York, North Carolina, Maryland, Minnesota or
Texas, or (iii) a day on which banks in the States of New York, North Carolina,
Maryland, Minnesota or Texas are authorized or obligated by law or executive
order to be closed.
(b) The
following definitions are added to Section 1.01 of the Purchase, Warranties
and
Servicing Agreement:
Master
Servicer: EMC Mortgage Corporation.
Nonrecoverable
Advance: Any advance previously made by the Seller pursuant to Section 5.03
or any Servicing Advance which, in the good faith judgment of the Seller, may
not be ultimately recoverable by the Seller from Liquidation Proceeds or
otherwise. The determination by the Seller that it has made a
Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate of the
Seller delivered to the Purchaser and the Master Servicer and detailing the
reasons for such determination.
Prepayment
Charge: Any prepayment premium, penalty or charge payable by a Mortgagor in
connection with any Principal Prepayment on a Mortgage Loan pursuant to the
terms of the related Mortgage Note.
Trustee:
U.S. Bank National Association.
(a) The
definition of Eligible Account in Section 1.01 of the Purchase Agreement is
deleted in its entirety and replaced with the following:
Eligible
Account: Any of (i) an account or accounts maintained with a federal or
state chartered depository institution or trust company, the long-term unsecured
debt obligations and short-term unsecured debt obligations of which (or, in
the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such holding company,
so long as Xxxxx’x is not a Rating Agency) are rated by each Rating Agency in
one of its two highest long-term and its highest short-term rating categories,
respectively, at the time any amounts are held on deposit therein; provided,
that following a downgrade, withdrawal, or suspension of such institution's
rating as set forth above, each account shall promptly (and in any
case within not more than 30 calendar days) be moved to one or more segregated
trust accounts in the trust department of such institution, or to an account
at
another institution that complies with the above requirements, or (ii) a trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000, acting in its fiduciary capacity or (iii)
any other account acceptable to the Rating Agencies, as evidenced in writing.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
(b) [The
definition of Principal Prepayment in Section 1.01 of the Purchase Agreement
is
deleted in its entirety and replaced with the following:
Principal
Prepayment: Any payment or other recovery of principal on a Mortgage Loan
full or partial which is received in advance of its scheduled Due Date,
including any Prepayment Charge and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment. Partial principal
Prepayments shall be applied in accordance with the terms of the related
Mortgage Note.]
(c) The
definition of Servicing Fee Rate in Section 1.01 of the Purchase Agreement
is
deleted in its entirety and replaced with the following:
Servicing
Fee Rate: A per annum rate equal to [0.250%.]
(c) [Section
2.03(e) of the Addendum is hereby amended by changing the reference in 2.03
(e)
of the Addendum from “15 calendar days” to “30 calendar days”.]
(d) Section
4.01 of the Purchase Agreement is hereby amended by changing the first sentence
of the third paragraph to the following:
(e) Consistent
with and in addition to the terms set forth in this Agreement, if a Mortgage
Loan is in default or such default is reasonably foreseeable, the Seller may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor, including without limitation, to (1) capitalize
any
amounts owing on the Mortgage Loan by adding such amount to the outstanding
principal balance of the Mortgage Loan, (2) defer such amounts to a later date
or the final payment date of such Mortgage Loan, (3) extend the maturity of
any
such Mortgage Loan, (4) amend the related Mortgage Note to reduce the related
Mortgage Interest Rate with respect to any Mortgage Loan, (5) convert the
Mortgage Interest Rate on any Mortgage Loan from a fixed rate to an adjustable
rate or vice versa, (6) with respect to a mortgage loan with an initial fixed
rate period followed by an adjustable rate period, extend the fixed period
and
reduce the adjustable rate period, and/or (7) forgive the amount of any
interest, principal or servicing advances owed by the related Mortgagor;
provided that, in the Seller's reasonable and prudent determination, such
waiver, modification, postponement or indulgence: (A) is not materially adverse
to the interests of the Purchaser [on a present value basis] using reasonable
assumptions (including taking into account any estimated realized loss that
might result absent such action); and (B) does not amend the related Mortgage
Note to extend the maturity thereof later than the date of the Latest Possible
Maturity Date (as such term is defined in the related pooling and servicing
agreement); provided, further, with respect to any Mortgage Loan that is not
in
default or if default is not reasonably foreseeable, unless the Seller has
provided to the Purchaser a certification addressed to the Purchaser, based
on
the advice of counsel or certified public accountants that have a national
reputation with respect to taxation of REMICs that a modification of such
Mortgage Loan will not result in the imposition of taxes on or disqualify from
REMIC status any of the REMICs and has obtained the prior written consent of
the
Purchaser, the Seller shall not permit any modification with respect to any
Mortgage Loan. [Notwithstanding the foregoing, for any waiver,
modification, postponement or indulgence (not including any partial releases,
assumptions of mortgages or modifications of any Mortgage Loan that is done
in
connection with compliance with the Relief Act) which the Seller reasonably
anticipates may result in a realized loss of 20% or more of the outstanding
principal balance of a Mortgage Loan, the Seller shall present such proposed
waiver, modification, postponement or indulgence, together with any supporting
documentation, to the Master Servicer for consideration and
approval. The Seller shall submit all waivers, modifications or
variances of the terms of any Mortgage Loan with respect to partial releases,
assumptions of mortgages or for modifications done in furtherance of compliance
with the Relief Act, together with any supporting documentation, to the Master
Servicer for consideration and approval.]
(f) The
following shall be added as the second paragraph in Section 4.02 of the
Purchase, Warranties and Servicing Agreement:
The
Seller shall not waive any Prepayment Charge unless: (i) such waiver is standard
and customary in servicing similar mortgage loans to the Mortgage Loans
(including any waiver of a Prepayment Charge in connection with a refinancing
of
a Mortgage Loan related to a default or a reasonably foreseeable default),
and
(ii) such waiver, in the reasonable judgment of the Seller, would maximize
recovery of total proceeds from the Mortgage Loan, taking into account the
value
of such Prepayment Charge and the related Mortgage Loan. In no event will the
Seller waive a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is not related to a default or a reasonably foreseeable default.
If a
Prepayment Charge is waived, but does not meet the standards described above,
then the Seller is required to pay the amount of such waived Prepayment Charge
by remitting such amount to the Master Servicer by the Remittance
Date.
(g) [Section
4.03 of the Purchase Agreement is hereby amended by adding the following
paragraph to the end of the section:
The
Master Servicer shall fully reimburse the Seller for Servicing Advances and
Monthly Advances related to Liquidation Proceeds on the Remittance Date after
such Servicing Advances and Monthly Advances are approved; provided, however,
the Seller must provide documentation in the form of Exhibit T hereto to the
Master Servicer seeking approval within 90 days of final liquidation of a
Mortgage Loan. The Master Servicer shall provide such approval or
denial to the Seller no later than thirty (30) days after receipt of such claim;
provided, however, such claim must be complete with all supporting
documentation. The Seller’s obligation to make such Servicing
Advances and Monthly Advances as to any Mortgage Loan shall continue through
the
final liquidation of the Mortgaged Property, unless the Seller deems such
advance nonrecoverable and submits an Officer’s Certificate in accordance with
Section 5.03.]
(h) Section
4.05 of the Purchase Agreement is hereby amended by adding the following as
Subsection 4.05(x):
to
reimburse itself for Nonrecoverable Advances, to the extent not reimbursed
pursuant to clause (ii) or clause (iii)[, upon prior approval from the Master
Servicer. The Master Servicer shall provide such approval or denial
to the Seller no later than thirty (30) days after receipt of such claim;
provided, however, such claim must be complete with all supporting
documentation.]
(i) [The
following is added as the last paragraph of Section 4.05:
Notwithstanding
the foregoing, the Seller’s right to reimbursement pursuant to clauses (ii),
(iii) and (ix) above shall be subject to the prior approval of the Master
Servicer. The Master Servicer shall provide such approval or denial
to the Seller no later than thirty (30) days after receipt of such claim;
provided, however, the Seller must submit such claim with all supporting
documentation in order for the Master Servicer to approve or deny such claim
within such time period. Pending such approval, such funds shall be
remitted by the Seller to the Master Servicer to the extent such funds, in
addition to any Servicing Advances and Advances, constitute an amount equal
to
the outstanding Stated Principal Balance of the related Mortgage Loan plus
any
accrued interest due and owing on such Mortgage Loan.]
(j) [Section
5.02 of the Purchase Agreement is hereby amended by adding the following
sentence at the end of the and replaced with the
following:
The
Seller shall also provide a monthly report in the form of Exhibit G, with
respect to remittances, Exhibit I, with respect to realized losses and gains,
Exhibit H, with respect to defaulted mortgage loans, Exhibit J, with respect
to
modified mortgage loans and Exhibit K, with respect to claims submitted, with
each such report.]
(k) Section
6.04 of the Purchase Agreement is hereby amended by adding the following
paragraph to the end of the section:
In
the
event the Servicer or any subservicer or subcontractor engaged by it is
terminated, assigns its rights and obligations under, or resigns pursuant to
the
terms of this Agreement, or any other applicable agreement in the case of a
subservicer or subcontractor, as the case may be, such party shall provide
an
Annual Statement of Compliance pursuant to this Section 6.04 or to the related
section of such other applicable agreement, as the case may be, as to the
performance of its obligations with respect to the period of time it was subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
(l) Section
2.05 of the Addendum is hereby amended by adding the following paragraph as
Section (c):
In
the
event the Servicer or any subservicer or subcontractor engaged by it is
terminated, assigns its rights and obligations under, or resigns pursuant to,
the terms of this Agreement, or any other applicable agreement in the case
of a
subservicer or subcontractor, as the case may be, such party shall provide
an
Assessment of Compliance and cause to be provided an Attestation Report pursuant
to this Section 2.05 or to the related section of such other applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
(m) Section
11.04 of the Purchase Agreement is deleted in its entirety and replaced with
the
following:
Section
11.04 Governing Law.
This
Agreement and the related Assignment and Conveyance Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to principles of conflicts of laws and except to the extent
preempted by Federal law. The obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
(n) [The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit G to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 4.
(o) The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit H to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 5.
(p) The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit I to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 6.
(q) The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit J to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 7.
(r) The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit K to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 8.]
(s) The
Purchase Agreement is hereby amended as of the date hereof by inserting a new
Exhibit L to the Purchase Agreement, a copy of which is annexed hereto as
Attachment 9.
Miscellaneous
11. Seller
shall indemnify and hold harmless the Assignor, each affiliate of the Assignor,
XXXX XX, the Assignee, Bear, Xxxxxxx & Co. Inc. (the “Underwriter”) and each
affiliate of the Underwriter, each Person (including, but not limited to, the
Master Servicer) responsible for the preparation, execution or filing of any
report required to be filed with the Commission, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act, each Person who controls the Assignor, XXXX XX, the Assignee or the
Underwriter (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act); and the respective present and former directors,
officers, employees, agents and affiliates of each of the foregoing (each,
an
“Indemnified Party”), and shall hold each of them harmless from and against any
claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon:
|
(i)
|
(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, data, accountants’ letter or
other material provided under Article II of the Addendum by or on
behalf
of the Assignor, or provided under Article II of the Addendum by
or on
behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the “Seller Information”), or (B) the omission or alleged
omission to state in the Seller Information a material fact required
to be
stated in the Seller 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 Seller Information and not to any other information
communicated in connection with a sale or purchase of securities,
without
regard to whether the Seller Information or any portion thereof is
presented together with or separately from such other
information;
|
|
(ii)
|
any
breach by the Seller of its obligations under Article II of the Addendum,
including particularly any failure by the Seller, any Subservicer,
any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under Article II of the Addendum, including any failure
by the
Seller to identify any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation
AB;
|
|
(iii)
|
any
breach by the Seller of a representation or warranty set forth in
Section
2.02(a) of the Addendum or in a writing furnished pursuant to Section
2.02(b) of the Addendum and made as of a date prior to the date hereof,
to
the extent that such breach is not cured by the date hereof, or any
breach
by the Seller of a representation or warranty in a writing furnished
pursuant to Section 2.02(b) of the Addendum to the extent made as
of a
date subsequent to the date hereof;
or
|
|
(iv)
|
the
negligence, bad faith or willful misconduct of the Seller in connection
with its performance under Article II of the
Addendum.
|
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller 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 Seller on the other.
In
the
case of any failure of performance described in Section 2.07(a)(ii) of the
Addendum, the Seller shall promptly reimburse the Assignor, XXXX XX and each
Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act, for all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator.
This
indemnification shall survive the termination of this AAR Agreement or the
termination of any party to this AAR Agreement.
12. All
demands, notices and communications related to the Assigned Loans, the Purchase
Agreement and this AAR 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 Seller:
|
|
|
Wachovia
Mortgage Corporation
|
|
|
000
X Xxxxx Xx
|
|
|
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
|
|
|
Attention:
Xxx Xxxxxx
|
|
|
Telephone
No.: (000) 000-0000
|
|
(b)
|
In
the case of Assignor:
|
|
|
EMC
Mortgage Corporation
|
|
|
0000
Xxxx Xxxxx Xxxxx
|
|
|
Xxxxxxxxxx,
Xxxxx 00000
|
|
|
Attention: Xxxxxxxx
Xxxxx
|
|
|
Telecopier
No.: (000) 000-0000
|
Email:
xxxxxx@xxxx.xxx
with
a
copy to:
Bear
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx XxXxxxxx
|
(c)
|
In
the case of Assignee:
|
|
|
U.S.
Bank National Association,
|
|
|
as
Trustee
|
|
|
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
|
|
Attention:
Corporate Trust Services – PRIME
2007-1
|
|
|
Telecopier
No.: (000) 000-0000
|
13. The
Seller hereby acknowledges that EMC Mortgage Corporation (the “Master Servicer”)
has been appointed as the master servicer of the Assigned Loans pursuant to
the
Pooling and Servicing Agreement, dated as of March 1, 2007, among XXXX XX,
the
Assignor, as seller and Master Servicer and the Assignee, and therefor has
the
right to enforce all obligations of the Seller, as they relate to the Assigned
Loans, under the Purchase Agreement. Such right will include, without
limitation, the right to terminate the Seller under the Purchase Agreement
upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Seller under the Purchase Agreement,
the
right to receive all monthly reports and other data required to be delivered
by
the Seller under the Purchase Agreement, the right to examine the books and
records of the Seller, indemnification rights, and the right to exercise certain
rights of consent and approval relating to actions taken by the
Seller. The Seller shall make all distributions under the Purchase
Agreement, as they relate to the Assigned Loans, to the Master Servicer by
wire
transfer of immediately available funds to:
EMC
Master Servicing Remittances
Bank:
Chase Bank of Texas
Branch:
Irving, Texas
Account
Name: EMC Mortgage Corporation
ABA:
#
000000000
ACCOUNT
#
000000709377717
Reference: M/S Remittance March 1, 2007 Remit for Wachovia Mortgage Corporation
Attention: LSBO Group-MS
Reference: M/S Remittance March 1, 2007 Remit for Wachovia Mortgage Corporation
Attention: LSBO Group-MS
and
the
Seller shall deliver all reports required to be delivered under the Purchase
Agreement, as they relate to the Assigned Loans, to the Assignee at the address
set forth in Section 8 herein and to the Master Servicer at:
EMC
Mortgage Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Email: xxxxxx@xxxx.xxx
000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
Email: xxxxxx@xxxx.xxx
14. Each
party will pay any commissions it has incurred and the fees of its attorneys
in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
15. This
AAR
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
16. No
term
or provision of this AAR 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.
17. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Seller
may be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Seller, respectively,
hereunder.
18. This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Agreements to the extent of the Assigned Loans by Assignor to Assignee
and
the termination of the Agreements.
19. This
AAR
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.
20. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Agreements with respect to the Assigned Loans, the terms of this AAR
Agreement shall control.
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as of
the
day and year first above written.
|
EMC
MORTGAGE CORPORATION
Assignor
By:_______________________________
Name:_____________________________
Title:______________________________
|
|
|
U.S.
BANK NATIONAL ASSOCIATION, not individually but solely as Trustee
for
the
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2007-1
|
|
|
Assignee
By: _______________________________
Name:_____________________________
Title:______________________________
|
|
|
WACHOVIA
MORTGAGE CORPORATION
Seller
By:_______________________________
Name:_____________________________
Title:______________________________
|
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
(Provided
Upon Request)
ATTACHMENT
2
Purchase
Agreement
Assignment
and Conveyance Agreement (Provided Upon Request)
[ATTACHMENT
3
AFFILIATION
DISCLOSURE
(Pursuant
to Item 1119 of Regulation AB)
1
.Sponsor and any affiliate, including but not limited to:
a.
EMC
Mortgage Corporation
b.
Bear,
Xxxxxxx & Co. Inc.
c.
Bear,
Xxxxxxx Securities Corp.
d.
Bear
Xxxxxxx Structured Products
e.
Bear,
Xxxxxxx International Limited
2.
Depositor and any affiliate, including but not limited to:
a.
Bear
Xxxxxxx Asset Backed Securities I LLC
b.
Structured Asset Mortgage Investments II Inc.
3.
Prime Mortgage Trust 2007-1 and any affiliate
4. U.S.
Bank National Association, as Trustee, and any affiliate
5.
Significant obligor and any affiliate – None
6.
Enhancement or support provider and any affiliate – None
7. 1100(d)(1)
parties – any named party in the Securitization Transaction:
a.
Cap
Contract Provider: None
b.
Underwriter: Bear, Xxxxxxx & Co. Inc.
c.
Servicers: Chevy Chase Bank, F.S.B.; EMC Mortgage Corporation;
National City Mortgage Co.; Wachovia Mortgage Corporation; Xxxxx Fargo Bank,
N.A.
d.
Master
Servicer: Xxxxx Fargo Bank, National Association
e.
Unaffiliated Servicer of 20%: Chevy Chase Bank, F.S.B.; EMC Mortgage
Corporation
f.
Originator of 10%: Chevy Chase Bank, F.S.B.; Impac Funding
Corporation
g.
Securities Administrator: Xxxxx Fargo Bank, National
Association
h.
Custodian: Xxxxx Fargo Bank, National Association]
[ATTACHMENT
4]
EXHIBIT
G
to the Purchase Agreement
REMITTANCE
OVERVIEW REPORT
|
|
|
|
|
FIELD
|
FIELD
|
FIELD
|
|
#
|
NAME
|
DEFINITION
|
|
Current
Monthly Remit File reported by Investor Services to Master Servicers
&
Investors:
|
||
|
1
|
S50YDATE
|
Cutoff
Date
|
|
2
|
CLIENT
|
WF
Client Number
|
|
3
|
INVNUM
|
WF
Investor Number
|
|
4
|
CATNUM
|
WF
Category Number
|
|
5
|
POOLNUM
|
Pool
Number
|
|
6
|
LOANNUMBER
|
WF
Loan Number
|
|
7
|
INVLNNO
|
Investor
Loan Number
|
|
8
|
SCHPRIN
|
Scheduled
Principal Payment
|
|
9
|
SCHNETINT
|
Scheduled
Net Interest Amount
|
|
10
|
CURTDATE
|
Curtailment
Date
|
|
11
|
CURTCOL
|
Total
Curtailment Amount
|
|
12
|
CURTADJ
|
Total
Curtailment Int Adjustment Amount
|
|
13
|
CURTREMIT
|
Total
Curtailment Remittance Amount
|
|
14
|
INTRATE
|
Interest
Rate
|
|
15
|
SFRATE
|
Service
Fee Rate
|
|
16
|
YIELD
|
Pass
Through Rate
|
|
17
|
PANDI
|
Principal
and Interest Payment
|
|
18
|
BEGSCHPB
|
Beginning
Scheduled Balance
|
|
19
|
ENDSCHPB
|
Ending
Scheduled Balance
|
|
20
|
BEGPB
|
Beginning
Principal Balance
|
|
21
|
ENDPB
|
Ending
Principal Balance
|
|
22
|
DUEDATE
|
Due
Date
|
|
23
|
PRINCOL
|
Principal
Collected
|
|
24
|
INTCOL
|
Interest
Collected
|
|
25
|
SFCOL
|
Service
Fee Collected
|
|
26
|
BUYDOWN
|
Buydown
Amount
|
|
27
|
SCHREMIT
|
Schedule
Principal and Net Interest Remittance Amount
|
|
28
|
TYPE
|
Populated
if "ARM" loan
|
|
29
|
PIFDATEPAID
|
Payoff
Date
|
|
30
|
PIFPRINPAID
|
Payoff
Principal Paid
|
|
31
|
PIFNETINTPAID
|
Payoff
Net Interest Paid
|
|
32
|
PIFPENALTYINTPAID
|
Payoff
Prepayment Penalty Paid
|
|
33
|
PIFREMIT
|
Total
Payoff Remittance Amount
|
|
34
|
PENDING
|
Pending
Transfer Flag
|
|
35
|
MESSAGE
|
Messages
|
|
36
|
SORTABLELOANNUMBER
|
Loan
Number
|
|
37
|
NOTES
|
Loan
Notes from Reporter
|
|
38
|
PRINDIFF
|
Loan
Sale Difference
|
|
39
|
PRINADJ
|
Loan
Sale Difference Interest Adjustment
|
|
Additional
Fields to be added as a result of REG AB (per
CTS):
|
||
|
40
|
SSCRAREMIT
|
Soldiers
and Sailors Remittance Amount
|
|
41
|
CLAIMSREMIT
|
Claims
Remittance Amount
|
|
42
|
MISCREMIT
|
Miscellaneous
Remittance Amount
|
|
43
|
TOTALREMIT
|
Total
Remittance Amount
|
|
44
|
PPPAMOUNT
|
Prepayment
Penalty Calculated Amount
|
|
45
|
PPPWAIVED
|
Prepayment
Penalty Waived Amount
|
|
46
|
PPPPAIDBYBORROWER
|
Prepayment
Penalty Paid by the Borrower
|
|
47
|
PPPPAIDBYSERVICER
|
Prepayment
Penalty Paid by the Servicer
|
|
48
|
MODEFFDATE
|
Modification
Effective Date
|
|
49
|
MODTYPE
|
Modification
Type (See Mod Type tab)
|
|
50
|
ACTIONCODE
|
Action
Code (See Action Code Tab - Just 63 & 65)
|
|
51
|
ACTUALDUEDATE
|
Actual
loan due date
|
|
52
|
ACTUALPRINBAL
|
Actual
Loan Principal Balance
|
|
Calculation:
|
|
|
|
TotalRemit
= Remit + PIFRemit + CurtRemit + SSCRARemit + ClaimsRemit +
MiscRemit
|
||
[ATTACHMENT
5]
EXHIBIT
H
to the Purchase Agreement
STANDARD
FILE LAYOUT - DEFAULT DETAIL REPORT
|
WF
Client ID
|
|
WF
Loan Number
|
|
MAN
|
|
Bankrupt_Status
|
|
Delq_Paymt_Count
|
|
%
of MI Coverage
|
|
Actual
MI Claim Filed Date
|
|
Actual
Bankruptcy Start Date
|
|
Actual
MI Claim Amount Filed
|
|
Actual
Discharge Date
|
|
Actual
Due Date
|
|
Actual
Eviction Complete Date
|
|
Actual
Eviction Start Date
|
|
Actual
First Legal Date
|
|
Actual
Redemption End Date
|
|
Bankruptcy
Chapter
|
|
Bankruptcy
Flag
|
|
Bankruptcy
Case Number
|
|
MI
Claim Amount Paid
|
|
MI
Claim Funds Received Date
|
|
Current
Loan Amount
|
|
Date
FC Sale Scheduled
|
|
Date
Relief_Dismissal Granted
|
|
Date
REO Offer Accepted
|
|
Date
REO Offer Received
|
|
Delinquency
Value
|
|
Delinquency
Value Source
|
|
Delinquency
Value Date
|
|
Delinquency
Flag
|
|
Foreclosure
Flag
|
|
Corporate
Expense Balance
|
|
Foreclosure
Attorney Referral Date
|
|
Foreclosure
valuation amount
|
|
Foreclosure
Valuation Date
|
|
Foreclosure
Valuation Source
|
|
FHA
27011A Transmitted Date
|
|
FHA
27011B Transmitted Date
|
|
VA
LGC_FHA Case Number
|
|
FHA
Part A Funds Received Date
|
|
Foreclosure
Actual Sale Date
|
|
Servicer
Loan Number
|
|
Loan
Type
|
|
Loss
Mit Approval Date
|
|
Loss
Mit Flag
|
|
Loss
Mit Removal Date
|
|
Loss
Mit Type
|
|
Loss
Mit Value
|
|
Loss
Mit Value Date
|
|
Loss
Mit Value Source
|
|
MI
Certificate Number
|
|
LPMI
Cost
|
|
Occupancy
Status
|
|
First
Time Vacancy_Occupancy Status Date
|
|
Original
Loan Amount
|
|
Original
Value Amount
|
|
Origination
Date
|
|
FHA
Part B Funds Received Date
|
|
Post
Petition Due Date
|
|
Property
Condition
|
|
Property
Type
|
|
Reason
for Default
|
|
REO
Repaired Value
|
|
REO
List Price Adjustment Amount
|
|
REO
List Price Adjustment Date
|
|
REO
Value As Is
|
|
REO
Actual Closing Date
|
|
REO
Flag
|
|
REO
Original List Date
|
|
REO
Original List Price
|
|
REO
Net Sales Proceeds
|
|
REO
Sales Price
|
|
REO
Scheduled Close Date
|
|
REO
Value Date
|
|
REO
Value Source
|
|
Repay
First Due Date
|
|
Repay
Next Due Date
|
|
Repay
plan broken/reinstated/closed date
|
|
Repay
Plan Created Date
|
|
SBO
Loan Number
|
|
Escrow
Balance/advance balance
|
|
Title
approval letter received date
|
|
Title
Package HUD/VA Date
|
|
VA
Claim Funds Received Date
|
|
VA
claim Submitted Date
|
|
VA
First Funds Received Amount
|
|
VA
First Funds Received Date
|
|
VA
XXX Submitted Date
|
|
Zip
Code
|
|
FNMA
Delinquency status code
|
|
FNMA
Delinquency Reason Code
|
|
Suspense
Balance
|
|
Restricted
Escrow Balance
|
|
Investor
Number
|
|
Acq_Date
|
[ATTACHMENT
6]
EXHIBIT
I
to the Purchase Agreement
The
Seller shall provide the Master Servicer with this Exhibit in the format below
or such other format as mutually agreed upon between the Seller and the Master
Servicer.
EMC
MASTER SERVICING CALCULATION OF GAIN/LOSS ON DELINQUENT LOAN
WORKSHEET
Date:____________________________
|
Prepared
By
|
Phone
Number
|
Email
Address
|
|
Servicer
Loan Number
|
Servicer
Address
|
EMC
Loan Number
|
|
Borrower
Name
|
Property
Address
|
|
Liquidation
Type
|
REO
|
Third
Party
|
Short
Sale
|
Charge
off
|
Deed
In Lieu
|
Has
this loan been previously
modified?
Yes
No
Has
this loan been crammed down in a
bankruptcy?
Yes
No
If
“Yes”,
provide amount _______________________________
Liquidation
and Acquisition Expenses:
Amounts
requiring Amortization Schedule for backup:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
|
Interest
Accrued at Net Rate Less Servicing Fees
|
|
|
Accrued
Servicing Fees
|
Amounts
requiring Additional backup:
|
Attorney’s
Fees
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Attorney’s
Costs
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Taxes
|
Payment
history showing disbursements
|
|
|
Property
Maintenance
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Property
Inspection
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
PMI/Hazard
Insurance Premiums
|
Payment
history showing disbursements
|
|
|
Utility
Expenses
|
Payment
history showing disbursements
|
|
|
Appraisal/BPO
Expenses
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
XXX
Xxxx
|
Payment
history showing disbursements
|
|
|
Cash
For Keys
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Miscellaneous
(itemized)
|
Requires
Itemization and supporting detail
|
|
|
Total
Expenses
|
-----------------------------------------------
|
Credits
to Loan:
|
Escrow
Balance/Advance
|
Payment
history showing disbursements and ending balance
|
|
|
Rental
Receipts
|
Payment
history showing application of funds to loan
|
|
|
Hazard
Claim Proceeds
|
Payment
history showing credit to account
|
|
|
PMI
Funds
|
EOB
document
|
|
|
Government
Insurance Funds (Part A Funds)
|
EOB
document
|
|
|
REO
Proceeds
|
HUD
1 Settlement Statement
|
|
|
Government
Insurance Funds (Part B Funds)
|
EOB
document
|
|
|
Pool
Insurance Proceeds
|
Payment
history showing credit to account
|
|
|
Other
Credits (itemized)
|
Payment
history showing credit to account
|
|
|
Total
Credits
|
------------------------------------------------
|
|
|
Total
Realized Loss (or Amount of
Gain)$________________
|
NOTE: Do
not combine or net remit items. All expenses and credits should be
documented individually. Claim packages are due by the fifth
business day of the month following receipt of liquidation
proceeds. Late claims may result in delayed claim
payment. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
[ATTACHMENT
7]
EXHIBIT
J
to the Purchase Agreement
MODIFIED
LOANS REPORT
|
Servicer
Loan Number
|
SBO
Number
|
Modification
Date
|
Modification
Reason
|
New
effective Interest Rate Date
|
New
effective Modified Payment amount date
|
Modification
Effective date
|
Modified
Balance
|
New
Effective Modified Interest Rate
|
New
Effective Modified Payment Amount
|
|
Modified
Maturity Date
|
Capitalized
Interest
|
New
Modified Servicer Service Fee Rate
|
New
Modified Investor Serivce Fee Rate
|
Fixed
Service Fee Rate
|
Convert
to Fixed Rate Loan
|
Modify
to Fixed Rate Characteristics
|
Total
Amount Capitalized
|
[ATTACHMENT
8]
EXHIBIT
K
to the Purchase Agreement
CLAIMS
SUBMITTED REPORT
|
Client
|
Loan
Number
|
Inv_Loan_Number
|
Mortgagor
Name
|
Inv
Id
|
Inv
Name
|
Claim
type
|
F/C
Sale Held
|
Prop
Sold To 3rd
Pty
|
Ratified
|
Rcv
3rd
Party
Sale $
|
Eviction
Rq To Atty
|
Tenants
Vacated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Part
A Submit
|
Partial Funds
Rec’d
|
Title
Pkg To Hud
|
Title
Aprvl
|
Part
B-E Submit
|
Final
Funds Rec’d
|
Claim
To Inv
|
Remittance
Letter
|
Report
Date
|
Aged
Days
|
WFHM
Status
|
WFHM
Comment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EMC
Claims Pending Payment
|
||
|
Total
Claims Filed
|
||
|
|
0-29
|
|
|
|
30-59
|
|
|
|
60-89
|
|
|
|
90
+_
|
|
ATTACHMENT
9
EXHIBIT
L
to the Purchase Agreement
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
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).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s 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.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
