ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT (the “Assignment
and Assumption Agreement”), dated as of March
30,
2007, among
EMC Mortgage Corporation, a Delaware
corporation (the
“Assignor”),
U.S.
Bank National
Association, not
individually but solely as trustee for the holders
of
Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-1 (the
“Assignee”) and
Xxxxx Fargo Bank, N.A. (the “Company”).
Whereas
the Assignor purchased certain
mortgage loans listed on Exhibit A attached hereto (the “Mortgage Loans”) from
the Company pursuant to that certain (i) Master Mortgage Loan Purchase Agreement
dated as of October 1, 2004, by and between the Company and the Assignor, (ii)
Amended and Restated Master Seller’s Warranties and Servicing Agreement dated as
of November 1, 2005 (the “Warranties and Servicing Agreement” or the
“Agreement”) and (iii) Assignment and Conveyance
Agreement
(WFHM 2006-W81) dated as of October 24, 2006 between the Company and the
Assignor (the “Assignment and Conveyance Agreement”);
Whereas
the Assignor and the Company
entered into that certain Warranties and Servicing Agreement pursuant to which
the Company agrees to service the Mortgage Loans.
In
consideration of the mutual promises
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the Mortgage Loans now serviced by the Company for the Assignor
and
its successors and assigns pursuant to the Warranties and Servicing Agreement
shall be subject to the terms of this Assignment and Assumption
Agreement. Capitalized terms used
herein but not otherwise defined shall have the meanings assigned to them in
the
Warranties and Servicing Agreement.
Assignment
and
Assumption
1. Except
as expressly provided for herein,
the Assignor hereby grants, transfers and assigns to the Assignee all of its
right, title and interest in, to and under (a) the
Mortgage
Loans and (b)
the Warranties and Servicing
Agreement with
respect to the Mortgage
Loans; provided, however,
that the Assignor is not
assigning to the Assignee any of its right, title and interest, to and under
the
Warranties and Servicing Agreement with respect to any mortgage loan other
than
the Mortgage Loans listed on Exhibit A. 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
Warranties and Servicing Agreement, and any obligation of the Company 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 of the Warranties and Servicing Agreement, and the Assignor is retaining
the right to enforce the representations and warranties and the obligations
of
the Company set forth in those sections against the Company. 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 Warranties and Servicing Agreement or otherwise relating to the
transaction contemplated herein (including, but not limited to, any obligation
to indemnify the Assignee).
Representations
Warranties and
Covenants
2. The
Assignor warrants and represents to,
and covenants with, the Assignee that as of the date hereof:
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(a)
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Attached
hereto as Exhibit
B are
true
and accurate copies
of the Warranties
and Servicing Agreement
and the Assignment and Conveyance Agreement, which agreements
are in full force
and effect as of the
date hereof and the provisions of which have not been waived, further amended
or modified in any
respect, nor has any notice of termination been given
thereunder;
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(b)
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The
Assignor
is
the lawful owner of the Mortgage
Loans with full right to transfer the Mortgage Loans and any and
all of
its interests, rights and obligations under the Warranties
and Servicing
Agreement as
they relate to the Mortgage
Loans, free and clear from any and all claims and encumbrances; and
upon
the transfer of the Mortgage Loans to the
Assignee as contemplated herein,
the Assignee
shall have good title to
each and every Mortgage Loan, as well as any and all of the
Assignee’s
interests, rights and
obligations under the Warranties
and Servicing
Agreement as they
relate to the Mortgage Loans, free and clear of any and all liens,
claims
and encumbrances;
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(c)
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There
are no offsets,
counterclaims or other defenses available to the
Company with respect to the
Mortgage Loans or the Warranties
and Servicing
Agreement;
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(d)
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The
Assignor
has no knowledge of, and
has not received notice of, any waivers under, or any modification
of, any
Mortgage Loan;
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(e)
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The
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 Mortgage
Loans;
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(f)
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The
Assignor
has full corporate power
and authority to execute, deliver and perform its obligations under
this
Assignment and Assumption Agreement, and to consummate the transactions
set forth herein. The
consummation of the
transactions contemplated by this Assignment and Assumption Agreement
is
in the ordinary course of the
Assignor’s
business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of the
Assignor’s
charter or by-laws or any legal
restriction, or any material agreement or instrument to which the
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 the
Assignor of this Assignment and
Assumption Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on part of the
Assignor. This
Assignment and Assumption
Agreement has been duly executed and delivered by the
Assignor and, upon the due
authorization, execution and delivery by the
Assignee and the
Company, will constitute the
valid and legally binding obligation of the
Assignor enforceable against
the
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;
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(g)
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No
consent, approval, order or
authorization of, or declaration, filing or registration with, any
governmental entity is required to be obtained or made by the
Assignor in connection with the
execution, delivery or performance by the
Assignor of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby. Neither
the
Assignor nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed
of
the Mortgage Loans or any interest in the Mortgage Loans, or solicited
any
offer to buy or accept a transfer, pledge or other disposition of
the
Mortgage Loans, or any interest in the Mortgage Loans or otherwise
approached or negotiated with respect to the Mortgage Loans, or any
interest in the Mortgage 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 Mortgage Loans under the Securities Act of 1933, as amended (the
“1933
Act”)
or which would render the
disposition of the Mortgage Loans a violation of Section 5 of the
1933 Act
or require registration pursuant thereto;
and
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(h)
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The
Assignor has received from
the Company,
and has delivered to
the
Assignee, all documents required
to be delivered to the Assignor
by the
Company prior to the date hereof
pursuant to the Warranties and Servicing Agreement with respect to
the
Mortgage Loans and has not received, and has not requested from
the
Company, any additional
documents.
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3. The
Assignee
warrants and represents to, and
covenants with, the
Assignor
and the Company
as of the date
hereof:
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(a)
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The
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 Mortgage Loans on behalf
of the holders of
Prime Mortgage
Trust,
Mortgage Pass-Through Certificates, Series 2007-1;
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(b)
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The
Assignee
has full corporate power
and authority to execute, deliver and perform under this Assignment
and
Assumption Agreement, and to consummate the transactions set forth
herein.
The
consummation of the
transactions contemplated by this Assignment and Assumption Agreement
is
in the ordinary course of the
Assignee’s
business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of the
Assignee’s
charter or by-laws or any legal
restriction, or any material agreement or instrument to which the
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 the
Assignee or its property is
subject. The
execution, delivery and
performance by the
Assignee of this Assignment and
Assumption Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on part of the
Assignee. This
Assignment and Assumption
Agreement has been duly executed and delivered by the
Assignee and, upon the due
authorization, execution and delivery by the
Assignor and the
Company, will constitute the
valid and legally binding obligation of the Assignee
enforceable against
the
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;
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(c)
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No
consent, approval, order or
authorization of, or declaration, filing or registration with, any
governmental entity is required to be obtained or made by the
Assignee in connection with the
execution, delivery or performance by the
Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby; and
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(d)
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The
Assignee assumes all of the
rights of the Purchaser under the Warranties and Servicing Agreement
with
respect to the Mortgage Loans other than the right to enforce the
obligations of the Company under the Warranties and Servicing
Agreement.
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4. The
Company
warrants and represents to, and
covenants with, the
Assignor and the
Assignee as of the date
hereof:
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(a)
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Attached
hereto as Exhibit
B are true
and accurate
copies of the
Warranties
and
Servicing Agreement and the Assignment and Conveyance
Agreement,
which agreements are in full
force and effect as of the
date hereof and the provisions of which have not been waived, further amended
or modified in any
respect, nor has any notice of termination been given
thereunder;
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(b)
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The
Company
is a national
banking association
duly organized,
validly existing and in good standing under the laws of the United States,
and has all requisite power and
authority to service the Mortgage Loans and otherwise to perform
its
obligations under the Warranties
and Servicing
Agreement;
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(c)
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The
Company
has full power and
authority to execute, deliver and perform its obligations under this
Assignment and Assumption Agreement, and to consummate the transactions
set forth herein. The
consummation of the
transactions contemplated by this Assignment and Assumption Agreement
is
in the ordinary course of the
Company’s
business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of the
Company’s
charter or by-laws or any legal
restriction, or any material agreement or instrument to which the
Company 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 the
Company or its property is
subject. The
execution, delivery and
performance by the
Company of this Assignment and
Assumption Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary action
on
part of the
Company. This
Assignment and Assumption
Agreement has been duly executed and delivered by the
Company, and, upon the due
authorization, execution and delivery by Assignor and Assignee, will
constitute the valid and legally binding obligation of Company,
enforceable against the
Company in accordance with its
terms except as enforceability may be limited by the effect
of insolvency,
liquidation, conservatorship and other similar laws administered
by the
Federal Deposit Insurance Corporation affecting the enforcement of
contract obligations of insured banks and subject to the application
of
the rules of equity;
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(d)
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No
consent, approval, order or
authorization of, or declaration, filing or registration with, any
governmental entity is required to be obtained or made by the
Company in connection with the
execution, delivery or performance by the
Company of this Assignment and
Assumption Agreement, or the consummation by it of the transactions
contemplated hereby;
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(e)
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The
Company
shall establish a
Custodial Account and an Escrow Account under the Warranties
and Servicing
Agreement in favor of
the
Assignee with respect to the
Mortgage Loans separate from the Custodial Account and Escrow Account
previously established under the Warranties
and Servicing Agreement
in favor of the Assignor;
and
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(f)
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Pursuant
to Section 9.01 of the
Warranties and Servicing Agreement, the Company hereby restates the
representations and warranties
set forth in
Section 3.01 of the
Warranties and Servicing Agreement with respect to the Company as
of the
date hereof as
amended by Section 10.
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5. The
Company warrants and represents to,
and covenants with, the Assignor and Structured Asset Mortgage Investments
II
Inc. (“XXXX XX”) as of the date hereof:
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(a)
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The
Company is not aware and has
not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization
due to any act or failure to act of the
Company;
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(b)
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Except
as indicated on the
Company’s 2006 Certification Regarding Compliance with Applicable
Servicing Criteria, no material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential
mortgage loans involving the Company as servicer has been disclosed
or
reported by the Company;
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(c)
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The
Company has not been
terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing
performance test or trigger;
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(d)
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No
material changes to the
Company’s policies or procedures with respect to the servicing function it
will perform under the Warranties and Servicing Agreement and this
Assignment and Assumption Agreement for mortgage loans of a type
similar
to the Mortgage Loans have occurred during the three-year period
immediately preceding the date
hereof;
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(e)
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There
are no aspects of the
Company’s financial condition that could have a material adverse effect on
the performance by the Company of its servicing obligations under
the
Warranties and Servicing Agreement and this Assignment and Assumption
Agreement;
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(f)
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There
are no material legal or
governmental proceedings pending (or known to be contemplated) against
the
Company, any Subservicer or any third-party originator;
and
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(g)
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There
are no affiliations,
relationships or transactions relating to the Company or any Subservicer
with respect to this Securitization Transaction and any party thereto
of a
type described in Item 1119 of Regulation
AB.
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6. The
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 the Assignor set forth in this Assignment and Assumption Agreement
or the breach of any covenant or condition contained herein.
7. The
Company hereby acknowledges that EMC
Mortgage Corporation and any successor thereto (the “Master Servicer”), has been
appointed as master servicer of the Mortgage Loans pursuant to the Pooling
and
Servicing Agreement dated as of March 1, 2007 the “Pooling and Servicing
Agreement”), among XXXX XX, the Assignor, as seller and Master Servicer and the
Assignee, and therefore has the right to enforce all obligations of the Company
under the Warranties and Servicing Agreement. Such right will include,
without
limitation, the right to receive all remittances required to be made by the
Company under the Warranties and Servicing
Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Company under the Warranties and Servicing
Agreement, the right to
examine the books and records of the Company, indemnification rights, and the
right to exercise certain rights of consent and approval relating to actions
taken by the Company. The Company hereby acknowledges that the Master
Servicer shall be obligated to notify the Assignee in accordance with the
Pooling and Servicing Agreement upon the discovery of an event of default by
the
Company of its obligations under the Warranties and Servicing Agreement and
the
Assignee shall have the right to terminate the Company as servicer under the
Warranties and Servicing
Agreement upon the occurrence
of such an event of default.
8. Notwithstanding
any term hereof to the
contrary, the execution and delivery of this Assignment and Assumption
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 Assignment
and Assumption Agreement
shall be limited solely to the assets it may hold as trustee of Prime Mortgage Trust,
Mortgage
Pass-Through Certificates, Series 2007-1.
Recognition
of
Assignee
9. From
and after the date
hereof, the
Company shall recognize the Assignee
as owner of the Mortgage
Loans and will service the Mortgage
Loans for the Assignee
as if the Assignee
and the Company
had entered into a separate
servicing agreement for the servicing of the Mortgage
Loans in the form of the Warranties and Servicing
Agreement
(as modified herein), the
terms of which are incorporated herein by reference. Notwithstanding
anything to the contrary
contained herein or in the Warranties and Servicing
Agreement,
the
Company
acknowledges that the
Mortgage
Loans will be part of a REMIC and
hereby agrees that in no event will it service the Mortgage
Loans 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 the
Assignor, the Company and
the
Assignee
that this Assignment and Assumption
Agreement shall be binding upon and for
the benefit of the respective successors and assigns of the parties hereto. Neither
the
Company nor the
Assignor
shall amend or agree to amend, modify,
waive, or otherwise alter
any of the terms or provisions of the Warranties and Servicing
Agreement
which amendment, modification,
waiver or other alteration would in any way affect the Mortgage
Loans without the prior written consent
of the Assignee.
The
Company shall prepare for and
deliver to the Master Servicer for the benefit of the Assignee a statement
with
respect to each mortgaged property acquired through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage 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 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 Company shall perform, or cause 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 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 Mortgage Loan, the Company shall cause such REO Property
to be
disposed prior to three (3) years after its acquisition by Prime Mortgage Trust,
Mortgage
Pass-Through Certificates, Series 2007-1 or, at the expense of
Prime
Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-1, request more than sixty
(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 shall have been
supplied with an opinion of counsel addressed to the Assignee rendered by
nationally recognized tax counsel specializing in such matters (such opinion
not
to be an expense of the Assignee) to the effect that the holding by 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 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 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
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 Company has agreed to indemnify and hold harmless
Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-1 with respect to the imposition
of any
such taxes.
Modification
of the
Warranties and
Servicing Agreement
10. The
Company and the Assignor
hereby amend the Warranties
and Servicing
Agreement as follows:
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(a)
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The
following definitions shall be
added to Article I of the Warranties
and Servicing
Agreement:
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Assignee:
U.S. Bank National Association, as
trustee for the holders of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1.
Master
Servicer: With respect to
any Securitization
Transaction, the “master servicer,” if any, identified in the related
transaction documents.
Nonrecoverable
Advance: Any advance
previously made by the Company pursuant to Section 5.03 or any Servicing Advance
which, in the good faith judgment of the Company, may not be ultimately
recoverable by the Company from Liquidation Proceeds or
otherwise. The determination by the Company that it has made a
Nonrecoverable Advance shall
be evidenced by an Officer’s
Certificate of the Company 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.
Written
Consent
Request: A written
request by the Company to the Master Servicer, requesting direction or approval
with respect to an action by the Company, which request shall include sufficient
information to allow the Master Servicer to make a decision and/or provide
the
requested direction to the Company.
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(b)
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The
definition of Servicing Fee
Rate in Article I of
the Warranties and Servicing Agreement is deleted in its entirety
and
replaced with the following:
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Servicing
Fee Rate: A per annum rate
equal to
0.25%.
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(c)
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The
definition of Principal
Prepayment in Article I of the Warranties and Servicing Agreement
is
deleted in its entirety and replaced with the
following:
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Principal
Prepayment: Any payment or
other recovery of
principal on a Mortgage Loan which is received in advance of its scheduled
Due
Date, 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.
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(d)
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The
definition of Remittance Date
in Article I of the Warranties and Servicing Agreement is deleted
in its
entirety and replaced with the
following:
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Remittance
Date: The 18th calendar
day (or
if such 18th calendar day is not a Business Day, then the preceding Business
Day) of any month.
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(e)
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The
definition of “Qualified
Depository” in the Warranties and Servicing Agreement shall be modified by
deleting the word “A-1” and replacing it with the word
“A-1+”.
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(f)
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Article
III of the Agreement is
hereby amended effective as of the date hereof as
follows:
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(1)
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Section
3.01(b) is amended by
replacing the “,” after the word “loans” in the third line, with a “.”,
and deleting the remainder of the
sentence.
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(2)
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Section
3.01(c) is amended by
deleting, “the sale of the Mortgage Loans to the
Purchaser”.
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(3)
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Section
3.01(f) is amended by
adding a “.” after, “The Company is solvent.” And deleting the remainder
of the paragraph.
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(4)
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Section
3.01(h) is amended by
deleting, “or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this
Agreement.
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(5)
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Section
3.01(i) is deleted in its
entirety.
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(6)
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Section
3.01(k) is deleted in its
entirety.
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(7)
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by
deleting Section 3.01(l) in its
entirety and replacing it with the
following:
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(1) No
Material Change.
There
has been no material adverse
change in the servicing policies and procedures, business, operations, financial
condition or assets of the Company since the date of the Company’s most recent
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement;
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(8)
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Section
3.01(m) is deleted in its
entirety.
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(g)
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Article
IV of the Agreement is
hereby amended effective as of the date hereof by adding “, other than
Servicing Advances,” after “future advances” in the second paragraph of
Section 4.01.
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(h)
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Article
IV of the Agreement is
hereby amended effective as of the date hereof by deleting “the Company
shall notify the Purchaser in writing of the Company’s intention to do so,
and the Company shall not commence foreclosure proceedings if the
Purchaser objects to such action within three (3) Business Days of
receiving such notice” in first paragraph of Section
4.02.
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(i)
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Section
4.01 of the Purchase
Agreement is hereby amended by changing the first sentence of the
second
paragraph to the following:
|
Consistent
with and in addition to the
terms set forth in this Agreement and the Assignment and Conveyance Agreement,
if a Mortgage Loan is in default or such default is reasonably foreseeable,
the
Company 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 Loan 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 Company'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 Company 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 Company shall not permit any
modification with respect to any Mortgage Loan. Notwithstanding the
foregoing, with respect to the forgiveness of any amount of principal as set
forth in item (7) above which the Company reasonably anticipates may result
in a
realized loss of 20% or more of the outstanding principal balance of a Mortgage
Loan, the Company shall make a Written Consent Request prior to making any
waiver, modification, postponement or indulgence to the Master
Servicer for consideration and approval, and the Master Servicer shall provide
written notice to the Company of its approval of, or objection to, such waiver,
modification, postponement or indulgence within two (2) Business Days of its
receipt of the Written Consent Request. In the event the Master Servicer
provides no response to the Written Consent Request within such timeframe,
the
Company shall take such action as it may deem appropriate, consistent with
the
terms of this Agreement and with Accepted Servicing
Practices. Furthermore, the Company shall make a Written Consent
Request prior to making any waiver, modification or variance of the terms of
any
Mortgage Loan with respect to partial releases or assumptions of mortgages
to
the Master Servicer for consideration and approval and the Master Servicer
shall
provide written notice to the Company of its approval of, or objection to,
such
waiver, modification, postponement or indulgence within two (2) Business Days
of
its receipt of the Written Consent Request. In the event the Master Servicer
provides no response to the Written Consent Request within such timeframe,
the
Company shall take such action as it may deem appropriate, consistent with
the
terms of this Agreement and with Accepted Servicing
Practices.
|
(j)
|
Article
IV of the Agreement is
hereby amended effective as of the date hereof by adding the following
as
the last paragraph of Section
4.02:
|
On
each Remittance Date, the Company
shall remit to the Master Servicer all Liquidation Proceeds and Insurance
Proceeds, along with any Servicing Advances, Monthly Advances and other amounts,
if any, such that the sum of the foregoing is equal to the aggregate of the
outstanding Stated Principal Balance of the related Mortgage
Loans. The Company shall fully reimburse itself, from the Custodial
Account, 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 Company must provide documentation
in the form of Exhibit K hereto to the Master Servicer seeking approval within
ninety (90) days of final liquidation of a Mortgage Loan. The
Master Servicer shall provide such approval or denial to the Company no later
than thirty (30) days after receipt of such claim and all supporting
documentation. The Company’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 Company deems such
advance nonrecoverable and submits an officer’s certificate in accordance with
Section 5.03.
|
(k)
|
Article
IV of the Agreement is
hereby amended effective as of the date hereof by adding the
following paragraph
to Section 4.03:
|
The
Company shall not waive any
Prepayment Charge unless: (i) the enforceability thereof shall have been limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally, (ii) the enforcement thereof is
illegal, or any local, state or federal agency has threatened legal action
if
the prepayment penalty is enforced, (iii) the mortgage debt has been accelerated
in connection with a foreclosure or other involuntary
payment or (iv) such waiver is standard
and customary in servicing similar Mortgage Loans and relates to a default
or a
reasonably foreseeable default and would, in the reasonable judgment of the
Company, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan. If a Prepayment
Charge is waived, but does not meet the standards described above, then the
Company is required to pay the amount of such waived Prepayment Charge by
remitting such amount to the Purchaser
by the Remittance
Date.
With
respect to any Mortgage Loan that
contains a provision permitting imposition of a premium upon a prepayment prior
to maturity, such prepayment penalty shall not be imposed in any instance where
the mortgage loan is accelerated or paid off in connection with the workout
of a
delinquent mortgage or due to the borrower’s default, notwithstanding that the
terms of the mortgage loan or state or federal law might permit the imposition
of such penalty.
|
(l)
|
Article
IV of the Agreement is hereby
amended by replacing the second paragraph of Section 4.04 with the
following:
|
The
Company shall deposit in a mortgage
clearing account on a daily basis, and in the Custodial Account within (2)
Business Days after the Company’s receipt of such funds, and retain therein, the
following collections received by the Company and payments made by the Company
after the related Cut-off Date, other than payments of principal and interest
due on or before the related Cut-off Date, or received by the Company prior
to
the related Cut-off Date but allocable to a period subsequent
thereto:
|
(m)
|
The
following is added as
Subsection 4.05(x)
of the Warranties
and Servicing
Agreement:
|
“(x) to
reimburse itself for any Nonrecoverable Advances upon prior approval from the
Master Servicer. The Master Servicer shall provide such approval or
denial to the Company no later than thirty (30) days after receipt of such
claim; provided, however, such claim must be complete with all supporting
documentation.”
|
(n)
|
The
following is added as the last
paragraph of Section 4.05:
|
“Notwithstanding
the foregoing, the
Company’s right to reimbursement pursuant to clauses (ii), (iii), (vii) and (x)
above shall be subject to the prior approval of the Master
Servicer. The Master Servicer shall provide such approval or denial
to the Company no later than thirty (30) days after receipt of such claim;
provided, however, the Company 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 Company to the Master Servicer to the extent such funds, in
addition to any Servicing Advances and Monthly 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. Upon
receipt by the Company of any approval or denial by the Master Servicer, the
Company shall be entitled to reimburse itself for the related approved
amounts.”
|
(o)
|
Article
IV of the Agreement
is hereby
amended by replacing the second paragraph of Section 4.06 with the
following:
|
The
Company shall deposit in a mortgage clearing account on a daily basis, and
in
the Escrow Account or Accounts within two (2) Business Days after the Company’s
receipt of such funds, and retain therein:
|
(p)
|
Article
IV of the Agreement is
hereby amended by replacing Section 4.25 with the
following:
|
The
Company shall not hire or otherwise
utilize the services of any Subservicer to fulfill any of the obligations of
the
Company as servicer under this Agreement or any Reconstitution Agreement unless
the Company complies with the provisions of paragraph (a) of this Section
4.25. The Company shall not hire or otherwise utilize the services of
any Subcontractor, and shall not permit any Subservicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the obligations
of
the Company as servicer under this Agreement or any Reconstitution Agreement
unless the Company complies with the provisions of paragraph (b) of this Section
4.25.
(a) It
shall not be necessary for the
Company to seek the consent of the Purchaser, any
Master Servicer or any Depositor to
the utilization of
any Subservicer. The Company shall cause any Subservicer used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section 4.25 and with Sections
6.04, 6.06, 9.01(e)(iii), 9.01(e)(v), 9.01(e)(vi), 9.01(e)(vii), 9.01(e)(viii)
and 9.01(f) of this Agreement to the
same extent as if such Subservicer were the Company, and to provide the
information required with respect to such Subservicer under Section 9.01(e)(iv)
of this Agreement. The Company shall be responsible for obtaining
from each Subservicer and delivering to the Purchaser and any Depositor any
servicer compliance statement required to be delivered by such Subservicer
under
Section 6.04 and any assessment of compliance and attestation required to be
delivered by such Subservicer under Section 6.06 and any certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be
delivered.
(b) It
shall not be necessary for the
Company to seek the consent of the Purchaser, any Master Servicer
or any Depositor to the utilization of
any Subcontractor. The Company shall promptly upon request provide to
the Purchaser, any Master
Servicer and any Depositor
(or any designee of the Depositor, such as an
administrator) a written description
(in form and substance satisfactory to the Purchaser, such Depositor
and such Master
Servicer) of the role and
function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this
paragraph.
As
a condition to the utilization of any
Subcontractor determined to be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB, the Company shall cause any such
Subcontractor used by the Company (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of Sections 6.06
and
9.01(f) of this Agreement to the same extent as if such Subcontractor were
the
Company. The Company shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any assessment
of compliance and attestation and the other certifications
required to be delivered by such
Subservicer and
such Subcontractor under
Section 6.06, in each case as and when required to be
delivered.
|
(q)
|
Article
V of the Agreement is
hereby amended effective as of the date hereof by deleting Section
5.02 in
its entirety and replacing it with the
following:
|
|
Section
5.02
|
Statements
to the
Purchaser.
|
No
later than the tenth (10th) calendar
day, the Company shall furnish to the Master Servicer an electronic file
containing the data specified in Exhibit I, which data shall reflect information
as to the period ending on the last day of the preceding month, Exhibit J with
respect to defaulted mortgage loans, Exhibit K with respect to realized losses
and gains, Exhibit L with respect to modified mortgage loans and Exhibit M
with
respect to claims submitted, with each such report.
|
(r)
|
Section
5.03 (Monthly Advances by
the Company) is hereby amended by adding as the last sentence of
the
paragraph:
|
“The
Company shall not have an
obligation to advance amounts in respect to shortfalls in excess of what is
required under the Servicemembers Civil Relief Act or similar state and local
laws for all applicable Mortgage Loans.”
|
(s)
|
Section
6.02 (Satisfaction of
Mortgages and Release of Mortgage Loan Documents) is hereby amended
by
adding “(other than as a result of a modification of the Mortgage pursuant
to this Agreement or a liquidation of the Mortgaged Property pursuant
to
the terms of this Agreement)” after “secured by the Mortgage” in the
second paragraph.
|
|
(t)
|
Section
6.04 (Annual Statements as
to Compliance) is hereby amended as
follows:
|
|
(1)
|
delete
paragraph (i) in its
entirety;
|
|
(2)
|
delete
the reference to “(ii)” at
the beginning of the section
paragraph;
|
|
(3)
|
delete
the references to “the
Purchaser and any Depositor” and replace each with “the Master Servicer”;
and
|
|
(4)
|
add
the following paragraph to the
end of the section:
|
“In
the event the Company 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.”
|
(u)
|
Section
6.05 (Annual Independent
Public Accountants’ Servicing Report) is deleted in its
entirety.
|
|
(v)
|
Section
6.06 (Report on Assessment
of Compliance and Attestation) is hereby amended by replacing the
references to “the Purchaser and any Depositor” with “the Master
Servicer”, “the Purchaser and such Depositor” with “the Master Servicer”,
“Section 425(b)” with “Section 4.25(b)” and “paragraphs (a) and (b)” with
“paragraphs (i) and (ii)”.
|
|
(w)
|
Section
6.06 is hereby amended by
adding the following paragraph at the end of the
section:
|
“In
the event the Company 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 6.06 or to the
related section of such other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or
resignation.”
|
(x)
|
Section
6.07(i) is hereby amended
by replacing the reference to “Section 9.01(e)(iv)(A)” with “Section
9.01(e)(vi)(A)”, “Section 9.01(e)(iv)(B)” with “Section 9.01(e)(vi)(B)”
and deleting the reference to “Section
6.05”.
|
|
(y)
|
Section
6.07(ii) is hereby amended
by replacing the references to “Purchaser or Depositor” with “Purchaser,
any Master Servicer or any Depositor”, “Subcontract” with “Subcontractor”
and deleting the reference to “Section
6.05”.
|
|
(z)
|
The
following are added as the
second, third and fourth paragraphs of Section 6.09 of the Warranties
and
Servicing Agreement:
|
“Notwithstanding
anything in this
Agreement to the contrary, the Company shall not (unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment
of
the Company, reasonably foreseeable) (a) permit any modification with respect
to
any Mortgage Loan that would change the Mortgage Interest Rate and (b) make
or
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would both effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or Treasury regulations promulgated
thereunder).
Prior
to taking any action with respect
to the Mortgage Loans which is not contemplated under the terms of this
Agreement, the Company will obtain an Opinion of Counsel reasonably acceptable
to the Trustee with respect to whether such action could result in the
imposition of a tax upon the 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) (either
such event, an “Adverse REMIC Event”), and the Company shall not take any such
action or cause the Trust Fund to take any such action as to which it has been
advised that an Adverse REMIC Event could occur.
The
Company shall not permit the
creation of any “interests” (within the meaning of Section 860G of the Code) in
the REMIC. The Company shall not enter into any arrangement by which the REMIC
will receive a fee or other compensation for services nor permit the REMIC
to
receive any income from assets other than “qualified mortgages” as defined in
Section 860G(a)(3) of the Code or “permitted investments” as defined in Section
860G(a)(5) of the Code.”
|
(aa)
|
Article
IX of the Warranties
and Servicing
Agreement is hereby
amended effective as of the date hereof by deleting in its entirety
Section 9.01(d).
|
|
(bb)
|
Article
IX of the Warranties
and Servicing
Agreement is hereby
amended effective as of the date hereof by replacing Section 9.01(e)(iv)
with the following:
|
(iv) For
the purpose of satisfying the
reporting obligation under the Exchange
Act with respect to any class of asset-backed securities, the Company shall
(or
shall cause each Subservicer to) (1) provide prompt notice
to the Purchaser,
any Master Servicer and any Depositor in writing of (A) any
material
litigation or governmental proceedings involving
the Company or
any Subservicer,
(B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Company or
any Subservicer and any of the parties
specified in Section 9.01(e)(iii)(J)
(and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, (C) any Event
of Default under the terms of this Agreement or any Reconstitution Agreement,
(D) any merger, consolidation or sale of substantially all of the assets of
the
Company, and (E) the Company’s entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Company’s obligations under
this Agreement or any Reconstitution Agreement, and (2) provide to the
Purchaser and
any Depositor a description of such proceedings, affiliations or
relationships.
Each
such notice/update pursuant to this Section
9.01(e)(iv)
should be sent by e-mail
to
xxxXXxxxxxxxxxxxxx@xxxx.xxx. Additionally,
all notifications pursuant to this
Section 9.01(e)(iv), other than those pursuant to Section 9.01(e)(iv)(A), should
be sent to:
EMC
Mortgage
Corporation
0000
Xxxx Xxxxx
Xxxxx
Xxxxxxxxxx,
XX
00000-0000
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, XX 00000
Attention: Global
Credit
Administration
Facsimile: (000)
000-0000
Notifications
pursuant to Section
9.01(e)(iv)(A) 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, XX 00000
Attention: Global
Credit
Administration
Facsimile: (000)
000-0000
EMC
Mortgage
Corporation
0000
Xxxx Xxxxx
Xxxxx
Xxxxxxxxxx,
XX
00000-0000
Attention:
Xxxxxxxx
Xxxxx
Facsimile:
(000)
000-0000
Email:
xxxxxx@xxxx.xxx
|
(cc)
|
Section
9.01(e)(v) of the
Warranties and Servicing Agreement is hereby amended effective as
of the
date hereof, by replacing the references to “the Purchaser and any
Depositor” with “the Purchaser, the Master Servicer and any Depositor” and
“the Purchaser and such Depositor” with “the Purchaser, the Master
Servicer and such
Depositor”.
|
|
(dd)
|
The
third paragraph of Section
9.01 of the
Warranties
and
Servicing Agreement is hereby amended effective as of the date hereof
by
replacing such section with the
following:
|
The
Purchaser and the Company
acknowledge and agree that the purpose of Section 9.01(e)
is to facilitate compliance by the
Purchaser and
any Depositor with the provisions of
Regulation AB and related rules and regulations of the
Commission. Although Regulation AB
is applicable by
its terms only to offerings of asset-backed securities that are registered
under
the Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser,
the Master Servicer nor
any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Company acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made by the
Purchaser, the Master
Servicer or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser and any Master
Servicer to deliver to the
Purchaser (including any of its assignees or designees), any Master Servicer
and
any Depositor, any and all statements, reports, certifications, records and
any
other information necessary in the good faith determination of the Purchaser,
the Master Servicer or any Depositor to permit the Purchaser, such Master
Servicer or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary
in
order to effect such compliance.
The
Purchaser (including any of its
assignees or designees) shall cooperate with the Company by providing timely
notice of requests for information under these provisions and by reasonably
limiting such requests to information required, in the Purchaser’s reasonable
judgment, to comply with Regulation AB.
|
(ee)
|
Section
9.01(e)(vii) of the
Warranties and Servicing Agreement is hereby amended effective as
of the
date hereof by replacing such section with the
following:
|
(vii)
In addition to such information as
the Company, as servicer, is obligated to provide pursuant to other provisions
of this Agreement, not later than ten (10) days prior to the deadline for the
filing of any distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the Company
or
any Subservicer, the Company or such Subservicer, as applicable, shall, to
the
extent the Company or such Subservicer has knowledge, provide to the party
responsible for filing such report (including, if applicable, the Master
Servicer) notice of the occurrence of any of the following events along with
all
information, data, and materials related thereto as may be required to be
included in the related distribution report on Form 10-D (as specified in the
provisions of Regulation AB referenced below):
(A) any
material modifications, extensions
or waivers of pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset
representations or warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(C) information
regarding new asset-backed
securities issuances backed by the same pool assets, any pool asset changes
(such as, additions, substitutions or repurchases), and any material changes
in
origination, underwriting or other criteria for acquisition or selection of
pool
assets (Item 1121(a)(14) of Regulation AB).
|
(ff)
|
Article
IX of the Agreement is
hereby amended effective as of the date hereof by inserting the following
new Section 9.01(e)(viii) as
follows:
|
(viii)
The Company shall provide to the
Purchaser, any Master Servicer and any Depositor, evidence of the authorization
of the person signing any certification
or statement, copies or other evidence of Fidelity Bond Insurance and Errors
and
Omission Insurance policy, financial information and reports, and such other
information related to the Company or any Subservicer or the Company or such
Subservicer’s performance hereunder.
|
(gg)
|
Article
IX of the Agreement
is hereby amended effective as of
the date hereof by inserting the following after Section 9.01(e)(iii)(H)
in its entirety as follows:
|
(I) a
description of any material legal or
governmental proceedings pending (or known to be contemplated) against the
Servicer; and
(J) a
description of any affiliation or
relationship between the Servicer and any of the following parties to a
Securitization Transaction, as such parties are identified to the Servicer
by
the Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider; and
|
|
(9)
|
any
other material transaction
party.
|
|
(hh)
|
Article
IX of this Agreement is
hereby amended by replacing Section 9.01(f) with the
following:
|
|
|
(f)
|
the
Company shall indemnify the
Purchaser, each affiliate of the Purchaser, and each of the following
parties participating in a Securitization Transaction; each sponsor
and
issuing entity; each Person (including,
but not limited to,
any Master Servicer, if applicable) responsible
for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under
the
Exchange Act with respect to such Securitization Transaction; each
broker
dealer acting as underwriter, placement agent or initial purchaser,
each
Person who controls any of such parties or the Depositor (within
the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange
Act); and the respective present and former directors, officers,
employees, agents and
affiliates of each of
the foregoing and of the Depositor (each, 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 Sections 4.25, 5.02,
6.04, 6.06
or 9.01(c)
or (e) by
or on behalf of the Company, or provided under Sections 9.01(c) or
(e) by
or on behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the “Company Information”), or (B) the omission or alleged
omission to state in the Company Information a material fact required
to
be stated in the Company 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 Company Information
and not
to any other information communicated in connection with a sale or
purchase of securities, without regard to whether the Company Information
or any portion thereof is presented together with or separately from
such
other information;
|
|
(ii)
|
any
breach by the Company of its
obligations under this Section 9.01(f), including any failure
by the Company, 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 Sections 4.25, 5.02, 6.04, 6.06
or
9.01(c) or (e), including any failure by the Company to identify
any
Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation
AB;
|
|
(iii)
|
any
breach by the Company of a
representation or warranty set forth in Section 9.01(e)(vi)(A) or
in a
writing furnished pursuant to Section 9.01(e)(vi)(B) and made as
of a date
prior to the closing date of the related Securitization Transaction,
to
the extent that such breach is not cured by such closing date, or
any
breach by the Company of a representation or warranty in a writing
furnished pursuant to Section 9.01(e)(vi)(B) to the extent made as
of a
date subsequent to such closing date;
or
|
|
(iv)
|
the
negligence, bad faith or
willful misconduct of the Company in connection with its performance
under
Sections 4.25, 6.04, 6.06, 6.07 or
9.01.
|
If
the indemnification provided for
herein is unavailable or insufficient to hold harmless an Indemnified Party,
then the Company 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 ins such proportion as is
appropriate to reflect the relative fault of such Indemnified Party on the
one
hand and the Company on the other.
In
the case of any failure of
performance described in sub-clause (ii) of this Section 9.01(f), the Company
shall promptly reimburse the Purchaser, any Depositor, as applicable, and each
Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d)
or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction, for all costs reasonably incurred by each such party in order
to
obtain the information, report, certification, accountants’ letter or other
material not delivered as required by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
|
(ii)
|
Article
X of the Agreement is
hereby amended effective as of the date hereof by replacing the reference
to “Custodial Agreement” in Section 10.01(ii) with “Custodial Agreement
(if no specific grace period or notification requirement is applicable
therein)”.
|
|
(jj)
|
Article
X of the Agreement is
hereby amended effective as of the date hereof by replacing the last
paragraph of Section 10.01 with the following paragraph (new next
underlined):
|
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.01. Upon written request from any Purchaser, the Company
shall prepare, execute and deliver to the successor entity designated by the
Purchaser any and all documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the termination of the Company as
servicer and the transfer of servicing of the Mortgage Loans to a successor
servicer, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such
successor in effecting the termination of the Company's responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Company to the Custodial Account, Subsidy Account or Escrow Account
or
thereafter received with respect to the Mortgage Loans. The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
|
(kk)
|
The
first sentence of Section
12.03 of the Warranties
and Servicing
Agreement is
deleted
in its entirety and replaced with the
following:
|
Section
12.03 Governing
Law.
This
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 (other than Section 5-1401
of the New
York General Obligations Law) and except to the extent
preempted by
Federal law and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
|
(ll)
|
A
new Section 12.12 (Third Party
Beneficiary) is hereby added to the Warranties and Servicing
Agreement.
|
Section
12.12
Third Party
Beneficiary.
For
Purposes of this Agreement, each
Master Servicer shall be considered a third party beneficiary to this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
this Agreement.
|
(mm)
|
Exhibit
D of the Warranties
and Servicing
Agreement is hereby
amended as of the date hereof by deleting in its entirety and inserting
a
new Exhibit D, a copy of which is annexed hereto as Exhibit
H.
|
|
(nn)
|
The
Warranties
and Servicing
Agreement is hereby
amended as of the date hereof by inserting a new Exhibit I, a copy
of
which is annexed hereto as Exhibit
C.
|
|
(oo)
|
The
Warranties
and Servicing
Agreement is hereby
amended as of the date hereof by inserting a new Exhibit J, a copy
of
which is annexed hereto as Exhibit
D.
|
|
(pp)
|
The
Warranties and Servicing
Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit K, a copy of which is annexed hereto as Exhibit E, or such other
format as mutually
agreed upon between the Company and the Master Servicer.
|
|
(qq)
|
The
Warranties and Servicing
Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit L, a copy of which is annexed hereto as Exhibit
F.
|
|
(rr)
|
The
Warranties and Servicing
Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit M, a copy of which is annexed hereto as Exhibit
G.
|
11. A
copy of all assessments, attestations,
reports and certificates required to be delivered by the Servicer under this
Assignment and Assumption Agreement and the 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 addresses shall
include the Master Servicer and the Master Servicer shall be entitled to rely
on
such documents.
12. Distributions
shall be made 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 for Xxxxx
Fargo Bank, N.A.
Attention: LSBO
Group-MS
and
the Company shall deliver all
reports required to be delivered under the Warranties and Servicing
Agreement to
the Master Servicer at:
EMC
Mortgage
Corporation
0000
Xxxx Xxxxx
Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxxx
Xxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxx.xxx
13. Notices:
The
Assignor’s
address for purposes of all notices
and correspondence related to the Mortgage Loans and this Assignment and
Assumption Agreement is:
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
Xxx
Xxxx, Xxx Xxxx
00000
Attention:
Xxxxx
XxXxxxxx
The
Assignee’s
address for purposes of all notices
and correspondence related to the Mortgage Loans and this Assignment and
Assumption Agreement is:
U.S.
Bank National
Association,
as
trustee
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust
Services
PRIME
2007-1
Telecopy:
(000)
000-0000
The
Company’s
address for purposes of all notices
and correspondence related to the Mortgage Loans and this Assignment and
Assumption Agreement is:
Xxxxx
Fargo Bank,
N.A.
1
Home Campus
MAC
X0000-000
Xxx
Xxxxxx, Xxxx
00000-0000
Attention:
Xxxx
X. Xxxxx
With
a copy to:
Xxxxx
Fargo Bank,
N.A.
1
Home Campus
Xxx
Xxxxxx, Xxxx
00000-0000
Attention:
General Counsel - MAC
X2401-06T
Miscellaneous:
14. Each
party will pay any commissions it
has incurred and the Assignor shall pay the fees of its attorneys and the
reasonable fees of the attorneys of the Assignee and the Company in connection
with the negotiations for, documenting of and closing of the transactions
contemplated by this Assignment and Assumption Agreement.
15. This
Assignment and Assumption Agreement
shall be construed in accordance with the laws of the State of New York,
including Sections 5-1401
and 5-1402 of the New General Obligations Law, but otherwise 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 Assignment
and Assumption 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
Assignment and Assumption Agreement
shall inure to the benefit of the successors and assigns of the parties hereto.
Any entity into which the
Assignor,
the
Assignee
or the Company
may be merged or consolidated
shall, without the requirement for any further writing, be deemed the Assignor,
the
Assignee
or the Company,
respectively,
hereunder.
18. This
Assignment and Assumption Agreement
shall survive the conveyance of the Mortgage
Loans
and the assignment of
the
Warranties
and Servicing
Agreement to
the extent of the Mortgage Loans by
the Assignor
to the Assignee
and the termination of the
Warranties
and Servicing
Agreement.
19. This
Assignment and Assumption 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
Assignment and Assumption Agreement conflicts with any provision of the
Warranties and Servicing
Agreement with
respect to the Mortgage Loans, the
terms of this Assignment and Assumption Agreement shall
control.
21. Any
new loan number assigned to a
Mortgage Loan by the Assignee shall be provided
to the Company at the following
address: Xxxxx Fargo Bank,
N.A.,
1 Home Campus, MAC X0000-000,
Xxx Xxxxxx, Xxxx 00000-0000 Attention:
Xxxx
X. Xxxxx. In
addition, if Assignee has changed its
document custodian from the previous custodian, such new custodian’s
name, address and contact information
shall be provided to the Company at the aforementioned
address.
IN
WITNESS WHEREOF, the parties have
caused this Assignment and Assumption Agreement to be executed by their duly
authorized officers as of the date first above written.
|
U.S.
BANK NATIONAL
ASSOCIATION,
not individually
but
solely as
trustee for the
holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2007-1
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
EMC
MORTGAGE
CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXX
FARGO BANK,
N.A.,
as
Company
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Acknowledged
and
Agreed
|
EMC
MORTGAGE
CORPORATION,
as
Master
Servicer
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
STRUCTURED
ASSET MORTGAGE
INVESTMENTS II INC.
|
|
|
By:
|
|
|
Name:
|
Xxxxx
Xxxxxxxxxxx
|
|
Title:
|
Vice
President
|
Exhibit
A
Mortgage
Loans
[Provided
upon
request]
Exhibit
B
Amended
and Restated Master Seller’s
Warranties and Servicing Agreement dated as of November 1, 2005, between
Xxxxx Fargo
and EMC.
[Provided
upon
request]
Exhibit
C
EXHIBIT
I to the Warranties and Servicing
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
|
||
Exhibit
D
EXHIBIT
J to the Warranties and Servicing
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
|
Exhibit
E
EXHIBIT
K to the Warranties
and Servicing
Agreement
The
Company shall provide the Master
Servicer with this Exhibit in the format below or such other format as mutually
agreed upon between the Company 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
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Liquidation
Type
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REO
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Third
Party
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Short
Sale
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Charge
off
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Deed
In
Lieu
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Has
this loan been previously
modified?
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Yes
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No
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Has
this loan been crammed down in
a bankruptcy?
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Yes
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No
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If
“Yes”,
provide amount
_______________________________
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Liquidation
and
Acquisition
Expenses:
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Amounts
requiring Amortization
Schedule for backup:
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Actual
Unpaid Principal Balance of
Mortgage Loan
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Interest
Accrued at Net Rate Less
Servicing Fees
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Accrued
Servicing
Fees
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Amounts
requiring Additional
backup:
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Attorney’s
Fees
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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Attorney’s
Costs
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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Taxes
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Payment
history showing
disbursements
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Property
Maintenance
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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Property
Inspection
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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PMI/Hazard
Insurance
Premiums
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Payment
history showing
disbursements
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Utility
Expenses
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Payment
history showing
disbursements
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Appraisal/BPO
Expenses
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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XXX
Xxxx
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Payment
history showing
disbursements
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Cash
For
Keys
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Corporate
advance history defining
amounts paid, reimbursed, payee and reason codes
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Miscellaneous
(itemized)
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Requires
Itemization and
supporting detail
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Total
Expenses
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------------------------------------------------
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Credits
to Loan:
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Escrow
Balance/Advance
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Payment
history showing
disbursements and ending balance
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Rental
Receipts
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Payment
history showing
application of funds to loan
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Hazard
Claim
Proceeds
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Payment
history showing credit to
account
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PMI
Funds
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EOB
document
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Government
Insurance Funds (Part A
Funds)
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EOB
document
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REO
Proceeds
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HUD
1 Settlement
Statement
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Government
Insurance Funds (Part B
Funds)
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EOB
document
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Pool
Insurance
Proceeds
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Payment
history showing credit to
account
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Other
Credits
(itemized)
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Payment
history showing credit to
account
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Total
Credits
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------------------------------------------------
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Total
Realized Loss (or Amount of
Gain)
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$________________
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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.
Exhibit
F
EXHIBIT
L to the Warranties
and Servicing
Agreement
MODIFIED
LOANS
REPORT
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Servicer
Loan
Number
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SBO
Number
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Modification
Date
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Modification
Reason
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New
effective Interest Rate
Date
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New
effective Modified Payment
amount date
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Modification
Effective
date
|
Modified
Balance
|
New
Effective Modified
Interest
Rate
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New
Effective Modified Payment
Amount
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Modified
Maturity
Date
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Capitalized
Interest
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New
Modified Servicer Service Fee
Rate
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New
Modified Investor Serivce Fee
Rate
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Fixed
Service Fee
Rate
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Convert
to Fixed Rate
Loan
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Modify
to Fixed Rate
Characteristics
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Total
Amount
Capitalized
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Exhibit
G
EXHIBIT
M to the Warranties
and Servicing
Agreement
CLAIMS
SUBMITTED
REPORT
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Client
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Loan
Number
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Inv_Loan_Number
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Mortgagor
Name
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Inv
Id
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Inv
Name
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Claim type
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F/C
Sale
Held
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Prop
Sold To 3rd
Pty
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Ratified
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Rcv
3rd
Party Sale
$
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Eviction
Rq To
Atty
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Tenants
Vacated
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Part
A
Submit
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Partial Funds
Rec’d
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Title
Pkg To
Hud
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Title
Aprvl
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Part
B-E
Submit
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Final
Funds Rec’d
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Claim
To
Inv
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Remittance
Letter
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Report
Date
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Aged
Days
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WFHM
Status
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WFHM
Comment
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EMC
Claims Pending
Payment
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||
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Total
Claims
Filed
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||
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0-29
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30-59
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60-89
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90
+_
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Exhibit
H
EXHIBIT
D to the Warranties
and Servicing
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”:
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Servicing
Criteria
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Applicable
Servicing
Criteria
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Reference
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Criteria
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General
Servicing
Considerations
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1122(d)(1)(i)
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Policies
and procedures are
instituted to monitor any performance or other triggers and events
of
default in accordance with the transaction
agreements.
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X
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1122(d)(1)(ii)
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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.
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X
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1122(d)(1)(iii)
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Any
requirements in the
transaction agreements to maintain a back-up servicer for the mortgage
loans are maintained.
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1122(d)(1)(iv)
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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.
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X
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Cash
Collection and
Administration
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1122(d)(2)(i)
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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.
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X
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1122(d)(2)(ii)
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Disbursements
made via wire
transfer on behalf of an obligor or to an investor are made only
by
authorized personnel.
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X
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1122(d)(2)(iii)
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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.
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X
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1122(d)(2)(iv)
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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.
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X
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1122(d)(2)(v)
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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.
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X
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so
as to prevent unauthorized access.
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X
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1122(d)(2)(vii)
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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.
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X
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Investor
Remittances and
Reporting
|
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1122(d)(3)(i)
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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.
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X
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1122(d)(3)(ii)
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Amounts
due to investors are
allocated and remitted in accordance with timeframes, distribution
priority and other terms set forth in the transaction
agreements.
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X
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1122(d)(3)(iii)
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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.
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X
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1122(d)(3)(iv)
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Amounts
remitted to investors per
the investor reports agree with cancelled checks, or other form of
payment, or custodial bank statements.
|
X
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Pool
Asset
Administration
|
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1122(d)(4)(i)
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Collateral
or security on
mortgage loans is maintained as required by the transaction agreements
or
related mortgage loan documents.
|
X
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1122(d)(4)(ii)
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Mortgage
loan and related
documents are safeguarded as required by the transaction
agreements
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X
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1122(d)(4)(iii)
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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.
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X
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1122(d)(4)(iv)
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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.
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X
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1122(d)(4)(v)
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The
Servicer’s records regarding
the mortgage loans agree with the Servicer’s records with respect to an
obligor’s unpaid principal balance.
|
X
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1122(d)(4)(vi)
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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
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1122(d)(4)(vii)
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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
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1122(d)(4)(viii)
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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
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1122(d)(4)(ix)
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Adjustments
to interest rates or
rates of return for mortgage loans with variable rates are computed
based
on the related mortgage loan documents.
|
X
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1122(d)(4)(x)
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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
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1122(d)(4)(xi)
|
Payments
made on behalf of an
obligor (such as tax or insurance payments) are made on or before
the
related penalty or expiration dates, as indicated on the appropriate
bills
or notices for such payments, provided 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
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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
|
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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
|
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1122(d)(4)(xiv)
|
Delinquencies,
charge-offs
and uncollectible accounts are recognized and recorded in accordance
with
the transaction agreements.
|
X
|
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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.
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