EXHIBIT 99.9
RECONSTITUTED SERVICING AGREEMENT
LUMINENT MORTGAGE TRUST 2006-6
This Reconstituted Servicing Agreement, dated as of September 28, 2006,
(this "AGREEMENT") is by and among EMC MORTGAGE CORPORATION ("EMC" 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 September 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 EMC for the
Seller pursuant to a Amended and Restated Purchase, Warranties and Servicing
Agreement, dated as of April 24, 2006 (the "SERVICING AGREEMENT"), among the
Seller, Mercury Mortgage Finance Statutory Trust, and EMC, a copy of which is
annexed hereto as Exhibit Three;
WHEREAS, the Seller desires that EMC continue to service the Serviced Loans
and EMC has agreed to do so, subject to the rights of the Master Servicer to
terminate the rights and obligations of EMC hereunder as set forth herein and to
the other conditions set forth herein;
WHEREAS, Section 11.12 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, EMC has
agreed, in Section 11.18 of the Servicing Agreement, to enter into additional
documents, instruments or agreements as may be reasonably necessary in
connection with any "Pass-Through Transfer" (as such term is defined in the
Servicing Agreement) contemplated by the Seller pursuant to the Servicing
Agreement;
WHEREAS, the Seller and EMC 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 Pass-Through Transfer 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 EMC 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) or in the Servicing Agreement shall have the meanings ascribed to
them in the Pooling Agreement.
ARTICLE II
SERVICING
EMC 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 (as such term is defined in the Servicing
Agreement) 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 October
18, 2006 to be made to the Trust Fund is to include all principal collections
due after September 1, 2006 (the "TRUST CUT-OFF DATE"), plus interest thereon at
the weighted average Mortgage Interest Rate collected during the Due Period
immediately preceding October 18, 2006, 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, EMC, and any successor servicer
hereunder, shall be subject to the supervision of the Master Servicer, which
Master Servicer shall be obligated to enforce EMC's obligation to service the
Serviced Loans in accordance with the provisions of this Agreement. EMC shall
recognize the Luminent Mortgage Trust 2006-6 Trust Fund (the "Trust Fund") as
the owner of the Serviced Loans, and EMC will service the Serviced Loans for the
Trust Fund as if the Trust Fund and EMC had entered into a separate servicing
agreement for the servicing of the Serviced Loans in the form of the Servicing
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 EMC, including, without
limitation, the enforcement of (i) the document delivery requirements set forth
in Section 2.07 of the Servicing Agreement and (ii) remedies with respect to
representations and warranties made by EMC in the Servicing Agreement, and shall
be entitled to enforce all of the obligations of EMC thereunder insofar as they
relate to the Serviced Loans. EMC 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. EMC 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 EMC'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 Certificateho1ders in the
Serviced Loans.
(b) The Master Servicer shall be entitled to terminate the rights and
obligations of EMC under this Agreement, as provided in Section 9.01 (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 EMC, 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 EMC for any costs or
expenses shall be satisfied by EMC'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 EMC 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 party,
such addressees shall include the Master Servicer and the Master Servicer shall
be entitled to rely on such documents.
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ARTICLE VI
WARRANTIES
Maia and EMC 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
(a) Pursuant to Section 11.18 of the Servicing Agreement, EMC 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 September 28, 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.
(b) EMC 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 EMC 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.
(c) 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
EMC 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
Mortgage Loan Servicing Agreement and 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 election. EMC hereby consents to such
assignment and assumption and acknowledges the Trust Fund's REMIC election.
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ARTICLE IX
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 2006-6
(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 2006-6, 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:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trustee Luminent Mortgage Trust 2006-6
(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
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(e) All demands, notices and communications required to be delivered to EMC
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:
EMC Mortgage Corporation
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: President or General Counsel
Facsimile: (000)000-0000
ARTICLE X
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 XI
AMENDMENT
The parties hereto hereby acknowledge and agree that the Servicing
Agreement shall not be amended without the consent of the Seller.
ARTICLE XII
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 XIII
RECONSTITUTION
EMC and the Seller agree that this Agreement is a Reconstitution Agreement
executed in connection with a Securitization Transaction and that September 28,
2006 is the Reconstitution Date.
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ARTICLE XIV
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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Executed as of the day and year first above written.
EMC MORTGAGE CORPORATION, as Servicer
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Executive 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/ Xxxxxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Financial Officer
XXXXX FARGO BANK, N.A., as Master
Servicer and Securities Administrator
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Vice President
Agreed to and acknowledged By:
HSBC BANK USA, NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Trustee
for Luminent Mortgage Trust 2006-6
under the Pooling Agreement
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
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EXHIBIT ONE
Modifications to the Servicing Agreement
(a) The definition of "Business Day" in Section 1.01 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) The definition of "Custodial Account" in Section 1.01 is hereby amended
in its entirety to read as follows:
Custodial Account: Any separate demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "EMC
Mortgage Corporation, in trust for the Trustee of the Luminent
Mortgage Trust 2006-6 Trust Fund" and shall be established in an
Eligible Account.
(c) The definition of "Escrow Account" in Section 1.01 is hereby amended in
its entirety to read as follows:
Escrow Account: As defined in the Pooling Agreement.
(d) The definition of "Master Servicer" in Section 1.01 is hereby amended
in its entirety to read as follows:
Master Servicer: Xxxxx Fargo Bank, NA, or its successors in interest,
or such other master servicer as shall be appointed by the Purchaser.
(e) The definition of "Opinion of Counsel" in Section 1.01 is hereby
amended in its entirety to read as follows:
Opinion of Counsel: A written opinion of counsel, who may be counsel
of EMC, 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 independent of EMC, (ii) does not have any material
direct or indirect financial interest in EMC or in any affiliate of
any such entity and (iii) is not connected with EMC as an officer,
employee, director or person performing similar functions.
(f) The definition of "Permitted Investments" in Section 1.01 is hereby
amended in its entirety to read as follows:
Exhibit One-1
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
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
Exhibit One-2
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.
(g) The definition of "Rating Agency" in Section 1.01 is hereby amended in
its entirety to read as follows:
Rating Agency: As defined in the Pooling Agreement.
(h) Subsection 3.03 (Repurchase; Substitution) is hereby amended as
follows:
(i) by replacing each of the references to "the Purchaser" in the
first two sentences of the fifth paragraph with "Maia, the Depositor, the
Trustee, the Trust Fund and the Master Servicer;" and
(ii) by replacing the reference to "the Purchaser" in the last
sentence of the fifth paragraph with "the Master Servicer."
(iii) Section 4.01 (Company to Act as Servicer) is hereby amended by
adding the following proviso after the first 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
Exhibit One-3
imposition of a tax upon any such REMIC created thereunder.
(i) Section 4.03 (Realization Upon Defaulted Mortgage) is hereby amended by
adding a final paragraph to that section to read 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 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.
(j) Section 4.04 (Establishment of Custodial Accounts; Deposits in
Custodial Accounts) is hereby amended as follows:
(i) by adding the words "entitled "EMC Mortgage Corporation, in trust
for the Trustee of the Luminent Mortgage Trust 2006-6" to the end of the
first sentence of the first paragraph;
(ii) 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 Servicer 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 Investment is an obligation of the Servicer, 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 Servicer 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
Servicer 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."
(k) Section 4.05 (Permitted Withdrawals from the Custodial Account) is
hereby amended as follows:
(i) by adding a new clause (xi) to read as follows:
"(xi) to make payments to the Subordinate Holder in the amounts and in
the manner provided for in Exhibit L."
(l) Section 4.06 (Establishment of Escrow Accounts; Deposits in Escrow
Accounts) is hereby amended as follows:
Exhibit One-4
(i) by adding the words "entitled "EMC Mortgage Corporation, in trust
for the Trustee of the Luminent Mortgage Trust 2006-6" to the end of the
first sentence of the first paragraph;
(ii) by adding the following new paragraph at the end of such section
as follows:
"The Servicer 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 Servicer if such Servicing Advance would,
if made, be, in the Servicer's reasonable judgment, nonrecoverable."
(m) The first paragraph under Section 5.02 (Statements to the Purchaser) is
hereby amended to read as follows:
"Statements to the Master Servicer. Not later than the tenth business
day of each month (or, if such 10th day is not a Business Day, the
following Business Day) the Servicer 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 Exhibits M, N and O."
(n) 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."
(o) Subsection 8.04 (Company Not to Assign or Resign) is hereby amended by
replacing each reference to "the Purchaser" with "the Depositor, the Trustee,
the Master Servicer and each Rating Agency."
(p) Subsection 9.01 (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 F shall constitute an
immediate Event of Default for which no notice is required and no
opportunity to remedy shall be provided" after the words "given to the
Company by the Purchaser."
(q) Subsection 9.02 (Waiver of Defaults) is hereby amended by replacing the
reference to "Purchaser" with "Master Servicer."
Exhibit One-5
(r) Section 10.01 (Termination) is hereby amended by deleting the first
paragraph of such section in its entirety and replacing it with the following:
Section 10.01. Termination. The respective obligations and
responsibilities of the Servicer 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 hereunder; (ii) in
accordance with Section 9.01 or (iii) in accordance with Section 8.04.
(s) Section 11.01 (Successor to the 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 4.13, 8.04, 9.01 or
10.01(ii) or (iii)" with "Subsection 9.01" 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 Servicer 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 reference to "the Purchaser" in the second and
sixth lines of the second paragraph with "the Master Servicer and the
Trustee;" and
(vi) by adding the following paragraph to the end of such section:
"Except as otherwise provided in this Section 11.01, 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 Servicer 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 in the servicing
data, to the successor servicer shall be paid by the terminated or
resigning Servicer from its own funds without reimbursement, as
provided in Article V of the Pooling Agreement."
(t) Section 11.02 (Amendment) is hereby amended to read as follows:
Exhibit One-6
SECTION 11.02. Amendment. This Agreement may be amended only by
written agreement signed by the Servicer, 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 Servicer 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.
(u) A new Section 11.19 (Intended Third Party Beneficiary) is hereby added
to the Servicing Agreement to read as follows:
SECTION 11.19. 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 Servicer 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 Servicer
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.
(v) Exhibit M, Exhibit N and Exhibit O are each hereby deleted in their
entirety and replaced with the reporting formats attached hereto as Exhibit
Four.
(w) Exhibit L is hereby deleted in its entirety and replaced with the
provisions attached hereto as Exhibit Five.
Exhibit One-7
EXHIBIT TWO
List of Serviced Loans
To be retained in a separate closing binder entitled "Luminent 2006-6
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
[See Exhibit 99.10]
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 define Text up to 10 digits 20
a group of loans.
LOAN_NBR A unique identifier assigned to each loan Text up to 10 digits 10
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, First) 30
It is not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a borrower is
expected to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due to
the Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
CURT_ADJ_AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
Exhibit Four-1
Column Name Description Decimal Format Comment Max Size
--------------------------- ------------------------------------------- ------- ----------------------------------- --------
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to Action Code Key; 15=Bankruptcy, 2
indicate the default/delinquent status of a 30=Foreclosure, 60=PIF,
particular loan. 63=Substitution, 65=Repurchase,
70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, 2 No commas(,) or dollar signs ($) 11
if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar signs ($) 11
loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount 2 No commas(,) or dollar signs ($) 11
due at the beginning of the cycle date to
be passed through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer for the current cycle --
only applicable for Scheduled/Scheduled
Loans.
SCHED_NET_INT The scheduled gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current
cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by 2 No commas(,) or dollar signs ($) 11
the Servicer for the current reporting
cycle -- only applicable for Actual/Actual
Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current
reporting cycle as reported by the Servicer
-- only applicable for Actual/Actual Loans.
PREPAY_PENALTY_AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the
Servicer.
PREPAY_PENALTY_WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar signs ($) 11
waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
Exhibit Four-2
EXHIBIT N : STANDARD FILE LAYOUT - DELINQUENCY REPORTING
Column/Header Name Description Decimal Format Comment
--------------------------- -------------------------------------------------- ------- ---------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the
originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans in
their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST-NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due MM/DD/YYYY
to the servicerat the end of processing cycle, as
reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure
proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected 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 signs($)
sale.
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
Exhibit Four-3
Column/Header Name Description Decimal Format Comment
--------------------------- -------------------------------------------------- ------- ---------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs 2
are completed pursuant to a broker's price opinion
or appraisal.
If applicable:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why
the loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
Exhibit Four-4
Column/Header Name Description Decimal Format Comment
--------------------------- -------------------------------------------------- ------- ---------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar signs ($)
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
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit Four-6
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
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
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
Exhibit 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
EXHIBIT 3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: _______________________ Date: ____________________
Phone: _____________________________ Email Address:______________________
----------------- ------------ -----------------
Servicer Loan No. Servier 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
TYPE PERIOD OF BASE
(TAX/INS.) DATE PAID COVERAGE TOTAL PAID AMOUNT PENALTIES INTEREST
---------- --------- --------- ---------- ------ --------- ---------
Exhibit Four-13
EXHIBIT FIVE
Special Foreclosure Rights Section
(a) 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.
(b) 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.
(c) 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 five-Business
Days, affirmatively object to such action.
(d) If the Securityholder timely and affirmatively objects to an action or
contemplated action of the Company pursuant to section (c) above, then the
Securityholder shall instruct the Master Servicer in writing (with a copy to the
Servicer) 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 Servicer 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 Days 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 (iii) above,
then:
Exhibit Five-1
(A) 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.
(B) 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.
(C) If the Master Servicer shall not have received any such Fair
Value Prices 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 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.
(D) 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.
(e) 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
Exhibit Five-2
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.
(f) Any notice, confirmation, instruction or objection pursuant to
paragraphs (b) or (c) 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.
(g) 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 (e) hereof as set forth in paragraph (d)
above, with the unilateral right to control foreclosure decisions in respect of
delinquent and defaulted Mortgage Loans, and certain exclusive purchase rights
so as to maximize the recovery value on delinquent and defaulted Mortgage Loans.
(h) 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 the Master Servicer will have no duty or responsibility
to master service any such Mortgage Loan.
(i) 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.
(j) The Master Servicer shall promptly deliver any written notices that it
receives under this Addendum to the Securityholder.
Exhibit Five-3
