STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. Owner and EMC MORTGAGE CORPORATION Servicer SERVICING AGREEMENT Dated as of March 1, 2007 Prime Mortgage Trust 2007-1 Mortgage Pass-Through Certificates Series 2007-1
______________________________________________________________________________
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Owner
and
EMC
MORTGAGE CORPORATION
Servicer
Dated
as
of March 1, 2007
Mortgage
Pass-Through Certificates
Series
2007-1
_________________________________________________________________
EXHIBITS
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Exhibit
A
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Mortgage
Loan Schedule
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Exhibit
B
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Custodial
Account Letter Agreement
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Exhibit
C
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Escrow
Account Letter Agreement
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Exhibit
D
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Form
of Request for Release
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Exhibit
E
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Remittance
Overview Report
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Exhibit
F
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Remittance
Summary Report
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Exhibit
G
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Form
of Owner Certification
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Exhibit
H
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Summary
of Regulation AB Servicing Criteria
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Exhibit
I
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Summary
of Applicable Regulation AB Requirements
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Exhibit
J
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Servicing
Criteria to be Addressed in Assessment of Compliance
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Exhibit
K
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Default
Overview Report
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Exhibit
L
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Delinquent
Summary Report
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Exhibit
M
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Calculation
of Gain-Loss Delinquent Loans
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Exhibit
N
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Modified
Loans Report
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Exhibit
O
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Claims
Submitted Report
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Exhibit
P
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Loss
Severity Summary Report
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THIS
IS A
SERVICING AGREEMENT, dated as of March 1, 2007, and is executed between
Structured Asset Mortgage Investments II Inc. (the "Owner") and EMC Mortgage
Corporation (the "Servicer").
W
I T N E
S S E T H :
WHEREAS,
the Owner is the owner of the Mortgage Loans;
WHEREAS,
the Owner and the Servicer wish to prescribe the permanent management, servicing
and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Owner and the Servicer agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices: The procedures, including prudent
collection and loan administration procedures, and the standard of care (i)
employed by prudent mortgage servicers which service mortgage loans of the
same
type as the Mortgage Loans in the jurisdictions in which the related Mortgage
Properties are located or (ii) in accordance with the Xxxxxx Xxx Guide or
Xxxxxxx Mac Guide, subject to any variances negotiated with Xxxxxx Xxx or
Xxxxxxx Mac and subject to the express provisions of this
Agreement. Such standard of care shall not be lower than that the
Servicer customarily employs and exercises in servicing and administering
similar mortgage loans for its own account and shall be in full compliance
with
all federal, state, and local laws, ordinances, rules and
regulations.
Adjustment
Date: As to each ARM Loan, the date on which the Mortgage
Interest Rate is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement: This
Servicing Agreement including all exhibits hereto, amendments hereof and
supplements hereto.
ARM
Loans: First lien, conventional, 1-4 family residential Mortgage Loans with
interest rates which adjust from time to time in accordance with the related
Index and are subject to Periodic Rate Caps and Lifetime Rate Caps and which
may
permit conversion to fixed interest rates.
Business
Day: Any day other than (i) a Saturday or Sunday, or (ii) a
legal holiday in the States of Maryland, Minnesota, New York or the jurisdiction
in which the Servicer conducts its servicing activities, or (iii) a day on
which
banks in the States of Maryland, Minnesota, New York or the jurisdiction in
which the Servicer conducts its servicing activities are authorized or obligated
by law or executive order to be closed.
Code: The
Internal Revenue Code of 1986, as it may be amended from time to time, or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission
or SEC: The Securities and Exchange Commission.
Condemnation
Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of
the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Custodial
Account: One or more demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "PRIME 2007-1
Custodial Account in trust for XXXX XX, Owner of Whole Loan Mortgages and
various Mortgagors" established at a Qualified Depository, each of which
accounts shall be held by such Qualified Depository in a fiduciary
capacity, separate and apart from its funds and general assets.
Custodian: U.S.
Bank National Association, or such other custodian as Owner shall
designate.
Cut-off
Date: With respect to any Mortgage Loan, the opening of business
on the first day of the month in which the related closing date with respect
to
such Mortgage Loan occurs.
Delinquent: As
defined in the related pooling and servicing agreement.
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to any
Pass-Through Transfer.
Determination
Date: The 15th day (or if such 15th day is not a Business Day, the Business
Day immediately preceding such 15th day) of the month of the Remittance
Date.
Due
Date: Each day on which payments of principal and interest
are required to be paid in accordance with the terms of the related Mortgage
Note, exclusive of any days of grace.
Due
Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of such Remittance
Date and ending on the first day of the month of the Remittance
Date.
Escrow
Account: The separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "PRIME 2007-1 Escrow
Account, in trust for XXXX XX, Owner of Whole Loan Mortgages and various
Mortgagors" and shall be established at a Qualified Depository, each of which
accounts shall in no event contain funds in excess of the FDIC insurance
limits.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event
of Default: Any one of the conditions or circumstances
enumerated in Section 9.01.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Xxxxxx
Mae: Xxxxxx Xxx, or any successor thereto.
Xxxxxx
Mae Guide: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
Fidelity
Bond: A fidelity bond to be maintained by the Servicer pursuant
to Section 4.12.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
from time to time.
Xxxxxxx
Mac: Xxxxxxx Mac, or any successor thereto.
Xxxxxxx
Mac Guide: The Xxxxxxx Mac Selling Guide and the Xxxxxxx
Mac Servicing Guide and all amendments or additions thereto.
Full
Principal Prepayment: A Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
GAAP: Generally
accepted accounting procedures, consistently applied.
HUD: The
United States Department of Housing and Urban Development or any
successor.
Index: With
respect to each ARM Loan, on the related Adjustment Date, the index used to
determine the Mortgage Interest Rate on each such ARM Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Lifetime
Rate Cap: With respect to each ARM Loan, the maximum
Mortgage Interest Rate over the term of such Mortgage Loan, as specified in
the
related Mortgage Note.
Liquidation
Proceeds: Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, and any other amounts
received with respect to an REO Property pursuant to Section 4.13.
Margin: With
respect to each ARM Loan, the fixed percentage amount set forth in each related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer: EMC Mortgage Corporation, its successors in interest
and assigns, or any successor thereto designated by the Owner.
Monthly
Advance: The aggregate of the advances made by the Servicer
on any Remittance Date pursuant to Section 5.03.
Monthly
Payment: With respect to each Mortgage Loan, the scheduled
monthly payment of principal and interest thereon which is payable by the
related Mortgagor under the related Mortgage Note.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note.
Mortgage
Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan in accordance with the provisions of the related Mortgage
Note, and in the case of an ARM Loan, as adjusted from time to time on each
Adjustment Date for such Mortgage Loan to equal the Index for such Mortgage
Loan
plus the Margin for such Mortgage Loan, and subject to the limitations on such
interest rate imposed by the Periodic Rate Cap and the Lifetime Rate
Cap.
Mortgage
Loan: An individual Mortgage Loan described herein and as
further identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage Loan Documents, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents: The original mortgage loan legal documents held
by the Custodian.
Mortgage
Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Owner, which shall be equal to
the
related Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage
Loan Schedule: The schedule of Mortgage Loans attached hereto as
Exhibit A, such schedule being acceptable to the Owner and the
Servicer.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged
Property: The underlying real property securing repayment of a
Mortgage Note.
Mortgagor: The
obligor on a Mortgage Note.
Net
Liquidation Proceeds: As to any Mortgage Loan, Liquidation
Proceeds net of unreimbursed Servicing Advances, Servicing Fees and Monthly
Advances and expenses incurred by the Servicer in connection with the
liquidation of the Mortgage Loan and the related Mortgaged
Property.
Nonrecoverable
Advance: Any advance previously made by the Servicer pursuant to
Section 5.03 or any Servicing Advance proposed to be made by the Servicer in
respect of a Mortgage Loan or REO Property which, in the good faith judgment
of
the Servicer, may not be ultimately recoverable by the Servicer from Liquidation
Proceeds or Insurance Proceeds on such Mortgage Loan or REO Property as provided
herein. The determination by the Servicer that it has made a
Nonrecoverable Advance, or that a proposed advance may constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Owner and detailing the reasons for such
determination.
Officer's
Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Senior Vice President or a
Vice
President or by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered to the Owner
as required by this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be an employee
of the party on behalf of whom the opinion is being given, reasonably acceptable
to the Owner.
Owner: Structured
Asset Mortgage Investments II Inc., its successors in interest and assigns
(including the Trustee in connection with a Pass-Through Transfer).
Partial
Principal Prepayment: A Principal Prepayment by a Mortgagor of a
partial principal balance of a Mortgage Loan.
Pass-Through
Transfer: Any transaction involving either (1) a sale or other transfer of
some or all of the Mortgage Loans directly or indirectly to an issuing entity
in
connection with an issuance of publicly offered or privately placed, rated
or
unrated mortgage-backed securities or (2) an issuance of publicly offered or
privately placed, rated or unrated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Periodic
Rate Cap: With respect to each ARM Loan, the maximum
increase or decrease in the Mortgage Interest Rate on any Adjustment
Date.
Permitted
Investments: Any one or more of the following obligations or
securities:
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(i)
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direct
obligations of, and obligations the timely payment of which are fully
guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of
which
are backed by the full faith and credit of the United States of
America;
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(ii)
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(a)
demand or time deposits, federal funds or bankers' acceptances issued
by
any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (including
any
Trustee or the Master Servicer) and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial
paper and/or the short-term deposit rating and/or the long-term unsecured
debt obligations or deposits of such depository institution or trust
company at the time of such investment or contractual commitment
providing
for such investment are rated in one of the two highest rating categories
by each Rating Agency and (b) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit
Insurance Corporation;
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(iii)
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repurchase
obligations with respect to (a) any security described in clause
(i) above
or (b) any other security issued or guaranteed by an agency or
instrumentality of the United States of America, the obligations of
which are backed by the full faith and credit of the United States
of
America, in either case entered into with a depository institution
or
trust company (acting as principal) described in clause (ii)(a)
above;
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(iv)
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securities
bearing interest or sold at a discount issued by any corporation
(including any Trustee or the Master Servicer) incorporated under
the laws
of the United States of America or any state thereof that are rated
in one
of the two highest rating categories by each Rating Agency at the
time of
such investment or contractual commitment providing for such
investment; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investments therein will cause the then outstanding principal
amount
of securities issued by such corporation and held as Permitted
Investments to exceed 10% of the aggregate outstanding principal
balances and amounts of all the Permitted
Investments;
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(v)
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commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date
not more than one year after the date of issuance thereof) which are
rated in one of the two highest rating categories by each Rating
Agency at
the time of such investment;
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(vi)
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any
other demand, money market or time deposit, obligation, security
or
investment as may be acceptable to each Rating Agency;
and
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(vii)
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any
money market funds the collateral of which consists of obligations
fully
guaranteed by the United States of America or any agency or
instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United
States of America (which may include repurchase obligations secured
by
collateral described in clause (i)) and other securities (including
money
market or common trust funds for which any Trustee or the Master
Servicer
or any affiliate thereof acts as a manager or an advisor) and which
money
market funds are rated in one of the two highest rating categories
by each
Rating Agency;
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provided,
however, that no instrument or security shall be a Permitted Investment
if such instrument or security evidences a right to receive only interest
payments with respect to the obligations underlying such
instrument or if such security provides for payment of both principal and
interest with a yield to maturity in excess of 120% of the yield to
maturity at par.
Person: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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.
Prepayment
Interest Excess: With respect to any Remittance Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full or in part during the
portion of the related Prepayment Period occurring between the first day of
the
calendar month in which such Remittance Date occurs and the Determination Date
of the calendar month in which such Remittance Date occurs, an amount equal
to
interest (to the extent received) at the applicable Mortgage Loan Remittance
Rate on the amount of such Principal Prepayment for the number of days
commencing on the first day of the calendar month in which such Remittance
Date
occurs and ending on the last date through which interest is collected from
the
related Mortgagor.
Prepayment
Interest Shortfall: With respect to any Remittance Date, for each such
Mortgage Loan that was the subject of a Principal Prepayment during the portion
of the related Prepayment Period occurring between the first day of the related
Prepayment Period and the last day of the calendar month preceding the month
in
which such Remittance Date occurs, an amount equal to interest (to be paid
by
the Servicer out of its own funds without reimbursement therefor) at the
applicable Mortgage Loan Remittance Rate on the amount of such Principal
Prepayment for the number of days commencing on the date on which the prepayment
is applied and ending on the last day of the calendar month preceding such
Remittance Date.
Prepayment
Period: As to any Remittance Date, (a) in the case of Full Principal
Prepayments, the period commencing on the 16th day of
the month
prior to the month in which the related Remittance Date occurs and ending on
the
15th day of
the
month in which such Remittance Date occurs, and (b) in the case of Partial
Principal Prepayments or other recoveries, the preceding calendar
month.
Primary
Mortgage Insurance Policy: Each primary policy of mortgage
insurance, or any replacement policy therefor obtained by the Servicer pursuant
to Section 4.08.
Prime
Rate: The prime rate of U.S. money center banks as published from time to
time in The Wall Street Journal.
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan full or partial which is received in advance of its scheduled
Due
Date, including any Prepayment Charge and which is not accompanied by an amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied in accordance with the terms of the
related Mortgage Note.
Qualified
Appraiser: An appraiser, duly appointed by the Servicer,
who had no interest, direct or indirect in the Mortgaged Property or in any
loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, which appraiser and the appraisal
made by such appraiser both satisfy the requirements of Title XI of FIRREA
and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated.
Qualified
Depository: (a) The Custodian, (b) a depository, the
accounts of which are insured by the FDIC and the short term debt ratings and
the long term deposit ratings of which are rated in one of the two highest
rating categories by either of Xxxxx’x Investors Service, Inc. or Fitch, Inc.,
or (c) a depository, the short-term debt obligations, or other short-term
deposits of which are rated at least ‘A-2’ and the long-term unsecured debt
obligations of which are rated at least ‘AA-’ by Standard & Poor's Ratings
Service, a division of The McGraw Hill Companies Inc.
Qualified
Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by Xxxxxx
Xxx and Xxxxxxx Mac.
Rating
Agency: Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies Inc., and Xxxxx'x Investors Service, Inc.
Reconstitution
Agreement: Any agreement involving any Pass-Through Transfer or
Whole Loan Transfer.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
Relief
Act: The Servicemembers Civil Relief Act, or similar state or local
law.
REMIC: A
"real estate mortgage investment conduit" within the meaning of Section 860D
of
the Code.
REMIC
Provisions: The provisions of the Federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of the Code, and related
provisions, and regulations, rulings or pronouncements promulgated thereunder,
as the foregoing may be in effect from time to time.
Remittance
Date: The Remittance Date shall be the 18th day of any month, or
if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day.
REO
Disposition: The final sale by the Servicer of any REO
Property.
REO
Disposition Proceeds: Amounts received by the Servicer in
connection with a related REO Disposition.
REO
Property: A Mortgaged Property acquired by the Servicer on
behalf of the Owner as described in Section 4.13.
XXXX
XX: Structured Asset Mortgage Investments II Inc.
Sarbanes
Certification: A certification required pursuant to The Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations of the Commission promulgated thereunder
(including any interpretations or amendments thereof by the Commission’s
staff).
Securities
Act: The Securities Act of 1933, as amended.
Servicer: EMC
Mortgage Corporation, or any of its successors in interest or any successor
under this Agreement appointed as herein provided.
Servicing
Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations relating to each Mortgage Loan, including, but not limited to,
the
cost of (a) the preservation, restoration and protection of the Mortgaged
Property, (b) any enforcement, administrative or judicial proceedings, or any
legal work or advice specifically related to servicing the Mortgage Loans,
including but not limited to, foreclosures, bankruptcies, condemnations, drug
seizures, elections, foreclosures by subordinate or superior lienholders, and
other legal actions incidental to the servicing of the Mortgage Loans (provided
that such expenses are reasonable and that the Servicer specifies the Mortgage
Loan(s) to which such expenses relate), (c) the management and liquidation
of
the Mortgaged Property if the Mortgaged Property is acquired in full or partial
satisfaction of the Mortgage, (d) taxes, assessments, water rates, sewer rates
and other charges which are or may become a lien upon the Mortgaged Property,
and Primary Mortgage Insurance Policy premiums and fire and hazard insurance
coverage and (e) compliance with the obligations under Section
4.08.
Servicing
Criteria: As of any date of determination, the “servicing
criteria” set forth in Item 1122(d) of Regulation AB, or any amendments thereto,
a summary of the requirements of which as of the date hereof is attached hereto
as Exhibit H for convenience of reference only. In the event of a
conflict or inconsistency between the terms of Exhibit H and the text of Item
1122(d) of Regulation AB, the text of Item 1122(d) of Regulation AB shall
control (or those Servicing Criteria otherwise mutually agreed to by the Owner,
the Servicer and any Person that will be responsible for signing any Sarbanes
Certification with respect to a Pass-Through Transfer in response to evolving
interpretations of Regulation AB and incorporated into a revised Exhibit
H).
Servicing
Fee: With respect to each Mortgage Loan, the amount of the annual
servicing fee the Owner shall pay to the Servicer, which shall, for a period
of
one full month, be equal to one-twelfth of the product of (a) the
applicable Servicing Fee Rate and (b) the outstanding principal balance of
the
Mortgage Loan. Such fee shall be payable monthly, computed on the
basis of the same principal amount and period respecting which any related
interest payment on a Mortgage Loan is computed. The obligation of
the Owner to pay the Servicing Fee is limited to, and the Servicing Fee is
payable from the interest portion of such Monthly Payment collected by the
Servicer or as otherwise provided under Section 4.05.
Servicing
Fee Rate: The Servicing Fee Rate shall be a rate per annum equal
to 0.25%.
Servicing
File: The documents, records and other items pertaining to a
particular Mortgage Loan and any additional documents relating to such Mortgage
Loan as are in, or as may from time to time come into, the Servicer's
possession.
Servicing
Modification: Any modification of a Mortgage Loan which is effected by the
Servicer in accordance with the terms of this Agreement.
Servicing
Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Owner upon request, as such list may from time to time be amended.
Stated
Principal Balance: As to each Mortgage Loan as of any date of
determination, (i) the principal balance of such Mortgage Loan after giving
effect to payments of principal due and received or for which a Monthly Advance
has been made, minus (ii) all amounts previously distributed to the Owner with
respect to the Mortgage Loan representing Principal Prepayments.
Subcontractor:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Servicer or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Servicer under this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d)
of
Regulation AB.
Trustee: The
Person appointed as trustee in connection with any Pass-Through
Transfer.
Whole
Loan Transfer: The sale or transfer of some or all of the
ownership interest in the Mortgage Loans by the Owner to one or more third
parties in whole loan or participation format, which third party may be Xxxxxx
Mae or Xxxxxxx Mac.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS AND RECORDS; DELIVERY
OF
MORTGAGE LOAN DOCUMENTS
Section
2.01. Servicing of Mortgage Loans.
The
Servicer does hereby agree to service the Mortgage Loans in accordance with
the
terms of this Agreement. The rights of the Owner to receive payments
with respect to the Mortgage Loans shall be as set forth in this
Agreement.
Section
2.02. Maintenance of Servicing Files.
The
Servicer shall maintain a Servicing File consisting of all documents necessary
to service the Mortgage Loans. The possession of each Servicing File
by the Servicer is for the sole purpose of servicing the Mortgage Loan, and
such
retention and possession by the Servicer is in a custodial capacity
only. The Servicer acknowledges that the ownership of each Mortgage
Loan, including the Note, the Mortgage, all other Mortgage Loan Documents and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, has been vested in the Owner. All rights
arising out of the Mortgage Loans including, but not limited to, all funds
received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into
the
possession of the Servicer shall be received and held by the Servicer in trust
for the exclusive benefit of the Owner as the owner of the related Mortgage
Loans. Any portion of the related Servicing Files retained by the
Servicer shall be appropriately identified in the Servicer's computer system
to
clearly reflect the ownership of the related Mortgage Loans by the
Owner. The Servicer shall release its custody of the contents of the
related Servicing Files only in accordance with written instructions of the
Owner, except when such release is required as incidental to the Servicer's
servicing of the Mortgage Loans, such written instructions shall not be
required.
Section
2.03. Books and Records.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans which shall be appropriately
identified in the Servicer's computer system to clearly reflect the ownership
of
the Mortgage Loan by the Owner. In particular, the Servicer shall
maintain in its possession, available for inspection by the Owner, or its
designee and shall deliver to the Owner upon demand, evidence of compliance
with
all federal, state and local laws, rules and regulations, and requirements
of
Xxxxxx Mae or Xxxxxxx Mac, as applicable, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Mae and periodic inspection
reports as required by Section 4.13. To the extent that original documents
are
not required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Servicer may be in the form of microfilm
or microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the Servicer
complies with the requirements of the Xxxxxx Mae Guide.
The
Servicer shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Owner or its designee the related Servicing
File
(or copies thereof) during the time the Owner retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and
regulations.
Section
2.04. Transfer of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Servicer shall
be
under no obligation to deal with any person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan has
been
delivered to the Servicer in accordance with this Section 2.04. The
Owner may, subject to the terms of this Agreement, sell and transfer one or
more
of the Mortgage Loans in accordance with Sections 10.02 and 11.12,
provided, however, that the transferee will not be deemed to be an Owner
hereunder binding upon the Servicer unless such transferee shall agree in
writing to be bound by the terms of this Agreement and an assignment and
assumption of this Agreement reasonably acceptable to the
Servicer. The Owner shall advise the Servicer in writing of the
transfer. Upon receipt of notice of the permitted transfer, the
Servicer shall xxxx its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and shall release the previous Owner from
its
obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section
2.05. Delivery of Mortgage Loan
Documents.
The
Servicer shall forward to the Custodian on behalf of the Owner original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
4
week(s) of their execution; provided, however, that the Servicer shall provide
the Custodian on behalf of the Owner with a certified true copy of any such
document submitted for recordation within 4 week(s) after its execution, and
shall provide the original of any document submitted for recordation or a copy
of a recorded document if the original is not
available. If delivery is not completed within 180 days solely due to
delays in making such delivery by reason of the fact that such documents shall
not have been returned by the appropriate recording office, the Servicer shall
continue to use its best efforts to effect delivery as soon as possible
thereafter.
From
time
to time the Servicer may have a need for Mortgage Loan Documents to be released
by the Custodian. If the Servicer shall require any of the Mortgage
Loan Documents, the Servicer shall notify the Custodian in writing of such
request in the form of the request for release attached hereto as Exhibit
D. The Custodian shall deliver to the Servicer within five (5)
Business Days, any requested Mortgage Loan Document previously delivered to
the
Custodian, provided that such documentation is promptly returned to the
Custodian when the Servicer no longer requires possession of the document,
and
provided that during the time that any such documentation is held by the
Servicer, such possession is in trust for the benefit of the Owner.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SERVICER
The
Servicer represents, warrants and covenants to the Owner that as of the date
hereof or as of such date specifically provided herein:
(a)
The Servicer is a validly existing corporation in good standing under the laws
of the State of its organization and is qualified to transact business in,
is in
good standing under the laws of, and possesses all licenses necessary for the
conduct of its business in, each state in which any Mortgaged Property is
located or is otherwise exempt or not required under applicable law to effect
such qualification or license and no demand for such qualification or license
has been made upon the Servicer by any such state, and in any event the Servicer
is in compliance with the laws of each such State to the extent necessary to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this Agreement;
(b)
The Servicer has full power and authority to execute, deliver and perform,
and
to enter into and consummate all transactions contemplated by this Agreement
and
to conduct its business as presently conducted, has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid and
binding obligation of the Servicer, enforceable against it in accordance with
its terms subject to bankruptcy laws and other similar laws of general
application affecting rights of creditors and subject to the application of
the
rules of equity, including those respecting the availability of specific
performance;
(c)
None of the execution and delivery of this Agreement, the consummation of the
transactions contemplated thereby and hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Servicer's articles of
incorporation or by-laws or materially conflict with or result in a breach
of
any of the terms, conditions or provisions of any legal restriction or any
agreement or instrument to which the Servicer is now a party or by which it
is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject;
(d)
There is no litigation pending or, to the Servicer's knowledge, threatened
with
respect to the Servicer which is reasonably likely to have a material adverse
effect on the execution, delivery or enforceability of this Agreement, or which
is reasonably likely to have a material adverse effect on the financial
condition of the Servicer;
(e)
No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by the
Servicer of or compliance by the Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement except for
consents, approvals, authorizations and orders which have been
obtained;
(f)
The Servicer is an approved seller/servicer of residential mortgage loans for
Xxxxxx Mae and Xxxxxxx Mac. The Servicer is in good standing to
service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac and no event has occurred
which would make the Servicer unable to comply with eligibility requirements
or
which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac;
(g) As
of the date of each Pass-Through Transfer, and except as has been otherwise
disclosed to the Owner, the Master Servicer and any Depositor, or disclosed
in
any public filing: (1) no default or servicing related performance trigger
has
occurred as to any other Pass-Through Transfer due to any act or failure to
act
of the Servicer; (2) no material noncompliance with applicable servicing
criteria as to any other Pass-Through Transfer has occurred, been disclosed
or
reported by the Servicer; (3) the Servicer has not been terminated as servicer
in a residential mortgage loan Pass-Through Transfer, either due to a servicing
default or to application of a servicing performance test or trigger; (4) no
material changes to the Servicer’s servicing policies and procedures for similar
loans have occurred in the preceding three years; (5) there are no aspects
of
the Servicer’s financial condition that could have a material adverse impact on
the performance by the Servicer of its obligations hereunder; (6) there are
no
legal proceedings pending, or known to be contemplated by governmental
authorities, against the Servicer that could be material to investors in the
securities issued in such Pass-Through Transfer; and (7) there are no
affiliations, relationships or transactions relating to the Servicer of a type
that are described under Item 1119 of Regulation AB;
(h) If
so requested by the Owner, the Master Servicer or any Depositor on any date,
the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in clause
(g) of this Article or, if any such representation and warranty is not accurate
as of the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party;
(i) Notwithstanding
anything to the contrary in the Agreement, the Servicer shall (or shall cause
each Subservicer) (i) immediately notify the Owner, the Master Servicer and
any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Servicer or any Subservicer, (B) any affiliations or
relationships that develop following the closing date of a Pass-Through Transfer
between the Servicer or any Subservicer and any of the parties specified in
clause (7) of paragraph (g) of this Article (and any other parties identified
in
writing by the requesting party) with respect to such Pass-Through Transfer,
(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 Servicer, and (E) the Servicer’s entry into an agreement
with a Subservicer to perform or assist in the performance of any of the
Servicer’s obligations under this Agreement or any Reconstitution Agreement and
(ii) provide to the Owner and any Depositor a description of such proceedings,
affiliations or relationships;
(j) As
a condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner, the Master Servicer
and any Depositor of such succession or appointment and (y) in writing and
in
form and substance reasonably satisfactory to the Owner, the Master Servicer
and
such Depositor, all information reasonably requested by the Owner, the Master
Servicer or any Depositor in order to comply with its reporting obligation
under
Item 6.02 of Form 8-K with respect to any class of asset-backed securities;
and
(k) Servicer
has delivered to the Owner and the
Master Servicer financial statements of its parent, for its last two complete
fiscal years. All such financial information fairly presents the pertinent
results of operations and financial position for the period identified and
has
been prepared in accordance with GAAP consistently applied throughout the
periods involved, except as set forth in the notes thereto. There has
been no change in the servicing policies and procedures, business, operations,
financial condition, properties or assets of the Servicer since the date of
the
Servicer’s financial information that would have a material adverse effect on
its ability to perform its obligations under this Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01. Servicer to Act as Servicer.
The
Servicer, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices (giving due consideration to the Owner's reliance on the Servicer),
and shall have full power and authority, acting alone, to do or cause to be
done
any and all things in connection with such servicing and administration which
the Servicer may deem necessary or desirable and consistent with the terms
of
this Agreement and with Accepted Servicing Practices and shall exercise the
same
care that it customarily employs for its own account. In addition,
the Servicer shall furnish information regarding the borrower credit files
related to such Mortgage Loan to credit reporting agencies in compliance with
the provisions of the Fair Credit Reporting Act and the applicable implementing
regulations. Except as set forth in this Agreement, the Servicer shall service
the Mortgage Loans in accordance with Accepted Servicing Practices in compliance
with the servicing provisions of the Xxxxxx Xxx Guide, which include, but are
not limited to, provisions regarding the liquidation of Mortgage Loans, the
collection of Mortgage Loan payments, the payment of taxes, insurance and other
charges, the maintenance of hazard insurance with a Qualified Insurer, the
maintenance of fidelity bond and errors and omissions insurance, inspections,
the restoration of Mortgaged Property, the maintenance of Primary Mortgage
Insurance Policies, insurance claims, and title insurance, management of REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Loan Documents, annual
statements, and examination of records and facilities. In the event
of any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and any of the servicing provisions of the Xxxxxx
Mae Guide, the provisions of this Agreement shall control and be binding upon
the Owner and the Servicer. The Owner may, at its option, deliver
powers-of-attorney to the Servicer sufficient to allow the Servicer as servicer
to execute all documentation requiring execution on behalf of Owner with respect
to the servicing of the Mortgage Loans, including satisfactions, partial
releases, modifications and foreclosure documentation or, in the alternative,
shall as promptly as reasonably possible, execute and return such documentation
to the Servicer.
Consistent
with and in addition to the terms set forth in this Agreement, if a Mortgage
Loan is in default or such default is reasonably foreseeable, the Servicer
may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor, including without limitation, to (1) capitalize
any
amounts owing on the Mortgage Loan by adding such amount to the outstanding
principal balance of the Mortgage Loan, (2) defer such amounts to a later date
or the final payment date of such Mortgage Loan, (3) extend the maturity of
any
such Mortgage Loan, (4) amend the related Mortgage Note to reduce the related
Mortgage Interest Rate with respect to any Mortgage Loan, (5) convert the
Mortgage Interest Rate on any Mortgage Loan from a fixed rate to an adjustable
rate or vice versa, (6) with respect to a Mortgage Loan with an initial fixed
rate period followed by an adjustable rate period, extend the fixed period
and
reduce the adjustable rate period, and/or (7) forgive the amount of any
interest, principal or servicing advances owed by the related Mortgagor;
provided that, in the Servicer’s reasonable and prudent determination, such
waiver, modification, postponement or indulgence: (A) is not materially adverse
to the interests of the Owner on a present value basis using reasonable
assumptions (including taking into account any estimated realized loss (as
defined in the related pooling and servicing agreement) 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 Servicer has provided to the Owner
a
certification addressed to the Owner, 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 Owner, the Servicer shall not
permit any modification with respect to any Mortgage
Loan. Notwithstanding the foregoing, for any waiver, modification,
postponement or indulgence (not including any partial releases, assumptions
of
mortgages or modifications of any Mortgage Loan that is done in connection
with
compliance with the Relief Act) which the Servicer reasonably anticipates may
result in a realized loss of 20% or more of the outstanding principal balance
of
a Mortgage Loan, the Servicer shall present such proposed waiver, modification,
postponement of indulgence, together with any supporting documentation, to
the
Master Servicer for consideration and approval. The Servicer shall
submit all waivers, modifications or variances of the terms of any Mortgage
Loan
with respect to partial releases, assumptions of mortgages or for modifications
done in furtherance of compliance with the Relief Act, together with any
supporting documentation, to the Master Servicer for consideration and
approval.
In
connection with any such Servicing Modification, the Servicer may reimburse
itself from the Trust for any outstanding Monthly Advances and Servicing
Advances at the time of the modification to the extent that such related Monthly
Advances or Servicing Advances are reimbursable to the Servicer and to the
extent of the related principal portion of funds available for the related
Distribution Date (as defined in the related pooling and servicing agreement).
Any such reimbursement shall occur during the same calendar month as the
Servicing Modification, and, to the extent such Advance or Servicing Advance
is
forgiven, any such reimbursement will be treated as a realized loss which will
be incurred on the Distribution Date related to the calendar month during which
the Servicing Modification occurred. To the extent Monthly Advances and
Servicing Advances or other amounts owed the Servicer are capitalized, the
Servicer may reimburse itself from such arrearages on a first priority basis
to
the extent of related funds available for the related Distribution
Date
In
the event of any such waiver, modification, postponement or indulgence which
has
been agreed to in writing by the Owner and which permits the deferral of
interest or principal payments on any Mortgage Loan, the Servicer shall, on
the
Business Day immediately preceding the related Remittance Date in any month
in
which any such principal or interest payment has been deferred, deposit in
the
Custodial Account from its own funds, in accordance with Section 4.04 and
Section 5.03, the difference between (a) such month's principal and one month's
interest at the related Mortgage Loan Remittance Rate on the unpaid principal
balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Servicer shall be entitled to reimbursement for
Monthly Advances and Servicing Advances pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Servicer shall continue, and
is
hereby authorized and empowered, to prepare, execute and deliver, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties.
The
Servicer shall perform all of its servicing responsibilities hereunder or may
cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Servicer of a subservicer shall not release the
Servicer from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each subservicer as fully
as
if such acts and omissions were those of the Servicer. Any such
subservicer must be a Xxxxxx Xxx approved seller/servicer or a Xxxxxxx Mac
seller/servicer in good standing and no event shall have occurred, including
but
not limited to, a change in insurance coverage, which would make it unable
to
comply with the eligibility requirements for lenders imposed by Xxxxxx Xxx
or
for seller/servicers by Xxxxxxx Mac, or which would require notification to
Xxxxxx Xxx or Xxxxxxx Mac. The Servicer shall pay all fees and
expenses of each subservicer from its own funds, and a subservicer's fee shall
not exceed the Servicing Fee.
At
the
cost and expense of the Servicer, without any right of reimbursement from the
Custodial Account, the Servicer shall be entitled to terminate the rights and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer meeting the requirements in the
preceding paragraph, provided, however, that nothing contained herein shall
be
deemed to prevent or prohibit the Servicer, at the Servicer's option, from
electing to service the related Mortgage Loans itself. In the event
that the Servicer's responsibilities and duties under this Agreement are
terminated pursuant to Section 8.04, 9.01 or 10.01, and if requested to do
so by
the Owner, the Servicer shall at its own cost and expense terminate the rights
and responsibilities of each subservicer effective as of the date of termination
of the Servicer. The Servicer shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities of
each subservicer from the Servicer's own funds without reimbursement from the
Owner.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and a subservicer or any reference herein to actions taken
through a subservicer or otherwise, the Servicer shall not be relieved of its
obligations to the Owner and shall be obligated to the same extent and under
the
same terms and conditions as if it alone were servicing and administering the
Mortgage Loans. The Servicer shall be entitled to enter into an
agreement with a subservicer for indemnification of the Servicer by the
subservicer and nothing contained in this Agreement shall be deemed to limit
or
modify such indemnification.
Any
subservicing agreement and any other transactions or services relating to the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and Servicer alone, and the Owner shall have no obligations, duties
or liabilities with respect to such Subservicer including no obligation, duty
or
liability of Owner to pay such subservicer's fees and expenses. For
purposes of distributions and advances by the Servicer pursuant to this
Agreement, the Servicer shall be deemed to have received a payment on a Mortgage
Loan when a subservicer has received such payment.
Section
4.02. Collection of Mortgage Loan
Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer will proceed with diligence to collect all payments
due under each Mortgage Loan when the same shall become due and payable and
shall, to the extent such procedures shall be consistent with this Agreement
and
the terms and provisions of related Primary Mortgage Insurance Policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own
account. Further, the Servicer will take reasonable care in
ascertaining and estimating annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance premiums, and
all
other charges that, as provided in the Mortgage, will become due and payable
to
the end that the installments payable by the Mortgagors will be sufficient
to
pay such charges as and when they become due and payable.
The
Servicer 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 Servicer, maximize recovery
of total proceeds taking into account the value of such Prepayment Charge and
the related Mortgage Loan.
Section
4.03. Realization Upon Defaulted Mortgage
Loans.
The
Servicer shall use its reasonable efforts, consistent with the procedures that
the Servicer would use in servicing loans for its own account and the
requirements of the Xxxxxx Mae Guide, to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Section 4.01. In
determining the delinquency status of any Mortgage Loan, the Servicer will
apply
the definition of Delinquent as such term is defined under the related pooling
and servicing agreement. The Servicer shall use its reasonable
efforts to realize upon defaulted Mortgage Loans in such manner as will maximize
the receipt of principal and interest by the Owner, taking into account, among
other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall
have suffered damage, the Servicer shall not be required to expend its own
funds
toward the restoration of such property unless it shall determine in its
discretion (i) that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan to the Owner after reimbursement to itself for
such
expenses, and (ii) that such expenses will be recoverable by the Servicer
through Insurance Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 4.05. The Servicer shall be
responsible for all costs and expenses incurred by it in any such proceedings
or
functions as Servicing Advances; provided, however, that it shall be entitled
to
reimbursement therefor as provided in Section 4.05. Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Owner otherwise requests
an
environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified
inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Owner with a written report of the environmental
inspection. After reviewing the environmental inspection report, the
Owner shall determine how the Servicer shall proceed with respect to the
Mortgaged Property.
Section
4.04.
Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial
Accounts. Each Custodial Account shall be established with a
Qualified Depository. To the extent such funds are not deposited in a
Custodial Account, such funds may be invested in Permitted Investments for
the
benefit of the Owner (with any income earned thereon for the benefit of the
Servicer). Custodial Accounts will be reconciled within 45 calendar
days after the bank statement cut-off date. Funds deposited in the
Custodial Account may be drawn on by the Servicer in accordance with Section
4.05. The creation of any Custodial Account shall be evidenced by a letter
agreement in the form shown in Exhibit B hereto. The original
of such letter agreement shall be furnished to the Owner upon request. The
Servicer acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of any
such losses shall be immediately deposited by the Servicer in the Custodial
Account, out of the Servicer's own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Custodial Account or Accounts no later than 48 hours after receipt and
identification of funds and retain therein the following payments and
collections:
(i) all
payments on account of principal, including Principal Prepayments (exclusive
of
Prepayment Charges) and penalties, on the Mortgage Loans received after the
Cut-off Date;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the related
Mortgage Loan Remittance Rate received after the Cut-off Date;
(iii) all
Liquidation Proceeds received after the Cut-off Date;
(iv) any
net amounts received by the Servicer after the Cut-off Date in connection with
any REO Property pursuant to Section 4.13;
(v) all
Insurance Proceeds received after the Cut-off Date including amounts required
to
be deposited pursuant to Sections 4.08 and 4.10, other than proceeds to be
held
in the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property received after the
Cut-off Date other than proceeds to be held in the Escrow Account and applied
to
the restoration or repair of the Mortgaged Property or released to the Mortgagor
in accordance with the Servicer's normal servicing procedures, the loan
documents or applicable law;
(vii)
any Monthly Advances as provided in Section 5.03;
(viii)
any amounts received after the Cut-off Date and required to be deposited in
the
Custodial Account pursuant to Section 6.02; and
(ix) with
respect to each full or partial Principal Prepayment received after the Cut-off
Date, any Prepayment Interest Shortfalls, to the extent of the Servicer's
aggregate Servicing Fee received with respect to the related Due
Period.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, Prepayment Charges
and assumption fees, to the extent permitted by Section 6.01, and all Prepayment
Interest Excess need not be deposited by the Servicer in the Custodial
Account.
Section
4.05. Permitted Withdrawals From the Custodial
Account.
The
Servicer may, from time to time, make withdrawals from the Custodial Account
for
the following purposes:
(i) to
make payments to the Owner in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for Monthly Advances, the Servicer's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made;
(iii) to
reimburse itself for unreimbursed Servicing Advances and Monthly Advances,
the
Servicer's right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds received after the Cut-off Date related to
such
Mortgage Loan; provided, however, the Servicer must provide documentation to
the
Master Servicer supporting Servicing Advances related to Liquidation Proceeds
prior to withdrawing such amounts from the Custodial Account;
(iv) to
pay to itself as servicing compensation (a) any interest earned on funds in
the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date) and (b) the Servicing Fee from that portion of any payment
recovery attributable to interest on a particular Mortgage Loan;
(v) to
reimburse itself for any Nonrecoverable Advances;
(vi) to
transfer funds to another Qualified Depository in accordance with Section 4.09
hereof;
(vii) to
reimburse itself as provided in Section 8.03 hereof;
(viii)
to remove funds inadvertently placed in the Custodial Account in error by the
Servicer; and
(ix) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06. Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. Each Escrow Account shall be established with a
Qualified Depository. To the extent such funds are not deposited in
an Escrow Account, such funds may be invested in Permitted
Investments. Funds deposited in an Escrow Account may be drawn on by
the Servicer in accordance with Section 4.07. The creation of any Escrow Account
shall be evidenced by a letter agreement in the form shown in Exhibit C.
The original of such letter agreement shall be furnished to the Owner upon
request. The Servicer acknowledges and agrees that the Servicer shall
bear any losses incurred with respect to Permitted Investments. The
amount of any such losses shall be immediately deposited by the Servicer in
the
Escrow Account, as appropriate, out of the Servicer's own funds, with no right
to reimbursement therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Escrow Account or Accounts no later than 48 hours after receipt of funds
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms of this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Servicer shall make withdrawals from an Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except
as provided in Section 4.07, the Servicer shall be entitled to retain any
interest paid on funds deposited in an Escrow Account by the Qualified
Depository.
Section
4.07. Permitted Withdrawals From Escrow
Account.
Withdrawals
from the Escrow Account may be made by the Servicer only:
(i) to
effect timely payments of ground rents, taxes, assessments, water rates, fire
and hazard insurance premiums, Primary Mortgage Insurance Policy premiums,
if
applicable, and comparable items;
(ii) to
reimburse Servicer for any Servicing Advance made by Servicer with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund to the Mortgagor any funds as may be determined to be
overages;
(iv) for
transfer to the Custodial Account in connection with an acquisition of REO
Property;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to the Servicer, or to the Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account;
(vii) to
pay to the Mortgagors or other parties Insurance Proceeds deposited in
accordance with Section 4.06;
(viii)
to remove funds inadvertently placed in an Escrow Account in error by the
Servicer; and
(ix) to
clear and terminate the Escrow Account on the termination of this
Agreement.
As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in an Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement
therefor.
Section
4.08. Payment of Taxes, Insurance and Other Charges,
Maintenance of Primary Mortgage Insurance Policies, Collections
Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage or applicable law. To the
extent that the Mortgage does not provide for Escrow Payments, the Servicer
shall determine that any such payments are made by the Mortgagor when
due. The Servicer assumes full responsibility for the timely payment
of all such bills and shall effect timely payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same
or
the making of the Escrow Payments and shall make advances from its own funds
to
effect such payments.
The
Servicer will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan for
which such coverage is herein required. Such coverage will be
maintained until the ratio of the current outstanding principal balance of
the
related Mortgage Loan to the appraised value of the related Mortgaged Property,
based on the most recent appraisal of the Mortgaged Property performed by a
Qualified Appraiser, such appraisal to be included in the Servicing File, is
reduced to an amount for which Xxxxxx Xxx no longer requires such insurance
to
be maintained. The Servicer will not cancel or refuse to renew any
Primary Mortgage Insurance Policy that is required to be kept in force under
this Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or nonrenewed policy is obtained from and maintained with a Qualified
Insurer. The Servicer shall not take any action which would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any
loss which, but for the actions of the Servicer would have been covered
thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 6.01, the
Servicer shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions which may
be
required by such insurer as a condition to the continuation of coverage under
the Primary Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Owner, claims to the insurer under any
Primary Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to
Section 4.04, any amounts collected by the Servicer under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section
4.09. Transfer of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. The Servicer shall notify the
Owner of any such transfer within 15 Business Days of transfer. If any one
of
the investment ratings of a Qualified Depository holding funds or Eligible
Investments in the Custodial Account or Escrow Account is downgraded by the
issuing rating agency, the Servicer shall, within three (3) Business Days of
receipt of notice of the downgrading, transfer all such accounts, funds and
Permitted Investments to a different Qualified Depository in accordance with
this Agreement.
Section
4.10. Maintenance of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan, and
(b)
the percentage such that the proceeds thereof shall be sufficient to prevent
the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as being a special flood hazard area that
has federally-mandated flood insurance requirements, the Servicer will cause
to
be maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan or (iii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain
on the REO Property, fire and hazard insurance with extended coverage in an
amount which is at least equal to the maximum insurable value of the
improvements which are a part of such property, liability insurance and, to
the
extent required and available under the Flood Disaster Protection Act of 1973,
as amended, flood insurance in an amount as provided above. Any
amounts collected by the Servicer under any such policies other than amounts
to
be deposited in the Escrow Account and applied to the restoration or repair
of
the Mortgaged Property or REO Property, or released to the Mortgagor in
accordance with the Servicer's normal servicing procedures, shall be deposited
in the Custodial Account, subject to withdrawal pursuant to Section
4.05. It is understood and agreed that no other additional insurance
need be required by the Servicer or the Mortgagor or maintained on property
acquired in respect of the Mortgage Loans, other than pursuant to the Xxxxxx
Mae
Guide or such applicable state or federal laws and regulations as shall at
any
time be in force and as shall require such additional insurance. All
such policies shall be endorsed with standard mortgagee clauses with loss
payable to the Servicer and its successors and/or assigns and shall provide
for
at least thirty days prior written notice of any cancellation, reduction in
the
amount or material change in coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor's freedom of choice in selecting either
his insurance carrier or agent, provided, however, that the Servicer shall
not
accept any such insurance policies from insurance companies unless such
companies currently reflect a General Policy Rating in Best's Key Rating Guide
currently acceptable to Xxxxxx Xxx and are licensed to do business in the state
wherein the property subject to the policy is located.
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance
Policy.
|
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all of Mortgaged Properties securing the Mortgage
Loans, then, to the extent such policy provides coverage in an amount equal
to
the amount required pursuant to Section 4.10 and otherwise complies with all
other requirements of Section 4.10, the Servicer shall conclusively be deemed
to
have satisfied its obligations as set forth in Section 4.10, it being understood
and agreed that such policy may contain a deductible clause, in which case
the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with Section
4.10,
and there shall have been one or more losses which would have been covered
by
such policy, deposit in the Custodial Account the amount not otherwise payable
under the blanket policy because of such deductible clause. In connection with
its activities as Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of the Owner, claims under any such blanket policy in
a
timely fashion in accordance with the terms of such policy. Upon request of
the
Owner, the Servicer shall cause to be delivered to the Owner a certified true
copy of such policy and a statement from the insurer thereunder that such policy
shall in no event be terminated or materially modified without thirty (30)
days
prior written notice to the Owner.
Section
4.12. Fidelity Bond, Errors and Omissions
Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac on
all
officers, employees or other persons acting in any capacity with regard to
the
Mortgage Loans and who handle funds, money, documents and papers relating to
the
Mortgage Loans. The Fidelity Bond and errors and omissions insurance
shall be in the form of the Mortgage Banker's Blanket Bond and shall protect
and
insure the Servicer against losses, including forgery, theft, embezzlement,
fraud, errors and omissions and negligent acts of such persons. Such
Fidelity Bond and errors and omissions insurance shall also protect and insure
the Servicer against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of
the
indebtedness secured thereby. No provision of this Section 4.12
requiring the Fidelity Bond and errors and omissions insurance shall diminish
or
relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and
insurance policy shall be at least equal to the corresponding amounts required
by Xxxxxx Mae in the Xxxxxx Xxx Guide or by Xxxxxxx Mac in the Xxxxxxx Mac
Guide. The Servicer shall, upon request of Owner, deliver to the
Owner a certificate from the surety and the insurer as to the existence of
the
Fidelity Bond and errors and omissions insurance policy and shall obtain a
statement from the surety and the insurer that such Fidelity Bond or insurance
policy shall in no event be terminated or materially modified without thirty
days prior written notice to the Owner. The Servicer shall notify the
Owner within five Business Days of receipt of notice that such Fidelity Bond
or
insurance policy will be, or has been, materially modified or
terminated. The Owner and its successors or assigns as their
interests may appear must be named as loss payees on the Fidelity Bond and
as
additional insured on the errors and omissions policy.
Section
4.13. Title, Management and Disposition of REO
Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Owner or its designee. Any such Person or Persons holding
such title other than the Owner shall acknowledge in writing that such title
is
being held as nominee for the benefit of the Owner.
The
Servicer shall assume the responsibility for marketing each REO Property in
accordance with Accepted Servicing Practices. Thereafter, the Servicer shall
continue to provide certain administrative services to the Owner relating to
such REO Property as set forth in this Section 4.13. The REO Property must
be
sold within three years following the end of the calendar year of the date
of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held and (i)
the
Owner shall have been supplied with an Opinion of Counsel (at the Servicer's
expense) to the effect that the holding by the related trust of such Mortgaged
Property subsequent to such three-year period (and specifying the period beyond
such three-year period for which the Mortgaged Property may be held) will not
result in the imposition of taxes on "prohibited transactions" of the related
trust as defined in Section 860F of the Code, or cause the related REMIC to
fail
to qualify as a REMIC, in which case the related trust may continue to hold
such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel), or (ii) the Owner (at the Servicer's expense) or the Servicer shall
have applied for, prior to the expiration of such three-year period, an
extension of such three-year period in the manner contemplated by Section
856(e)(3) of the Code, in which case the three-year period shall be extended
by
the applicable period. If a period longer than three years is
permitted under the foregoing sentence and is necessary to sell any REO
Property, the Servicer shall report monthly to the Owner as to progress being
made in selling such REO Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made, no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of the
related trust or sold or managed in such a manner or pursuant to any terms
that
would (i) cause such Mortgaged Property to fail to qualify at any time as
"foreclosure property" within a meaning of Section 860G(a)(8) of the Code,
(ii)
subject the related trust to the imposition of any federal or state income
taxes
on "net income from foreclosure property" with respect to such Mortgaged
Property within the meaning of Section 860G(c) of the Code, or (iii) cause
the
sale of such Mortgaged Property to result in the receipt by the related trust
or
any income from non-permitted assets as described in Section 860F(a) (2)(B)
of
the Code, unless the Servicer has agreed to indemnify and hold harmless the
related trust with respect to the imposition of any such taxes.
The
Servicer shall deposit or cause to be deposited, on a daily basis in each
Custodial Account all revenues received with respect to the related REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 4.10 hereof. The
Servicer shall maintain separate records with respect to each REO Property
identifying all deposits and withdrawals from the Custodial Account for each
REO
Property.
The
Servicer shall furnish to the Owner on each Remittance Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by
such other information as the Owner shall reasonably request.
The
Servicer shall, either itself or through an agent selected by the Servicer,
and
in accordance with the Xxxxxx Mae Guide, manage, conserve, protect and operate
each REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed.
Each
REO Disposition shall be carried out by the Servicer at such price and upon
such
terms and conditions as the Servicer deems to be in the best interest of the
Owner. The REO Disposition Proceeds from the sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as
practical thereafter, the expenses of such sale shall be paid and the Servicer
shall be entitled to reimburse itself for any related unreimbursed Servicing
Advances, unpaid Servicing Fees or Monthly Advances made. Such
reimbursement will be subject to Master Servicer approval of claims submitted
within 90 days of liquidation (such approval will be rendered within 30 days
of
the Master Servicer’s receipt of the complete claim of loss notification
package), and on the Remittance Date immediately following the Principal
Prepayment Period in which such sale proceeds are received the proceeds of
such
sale deposited in the Custodial Account shall be distributed to the
Purchaser.
The
Servicer shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as may be required by the
circumstances. The Servicer shall make or cause the inspector to make a written
report of each such inspection. Such reports shall be retained in the
Servicing File and copies thereof shall be forwarded by the Servicer to the
Owner.
Section
4.14. Notification of Adjustments.
With
respect to each Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related Mortgage and Mortgage
Note. The Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage
Note
and Mortgage regarding the Mortgage Interest Rate adjustments. The
Servicer shall promptly, upon written request therefor, deliver to the Owner
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such
adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Owner that the Servicer has failed to adjust a Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note and Mortgage,
the
Servicer shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused to the Owner
thereby.
ARTICLE
V
PAYMENTS
TO THE OWNER
Section
5.01. Remittances.
On
each
Remittance Date, the Servicer shall remit to the Owner (i) all amounts credited
to the Custodial Account as of the close of business on the last day of the
calendar month preceding the Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 4.05, except (a)
Full
Principal Prepayments received on or before the 15th day of the month in which
a
Remittance Date occurs shall be remitted to the Owner on the Remittance Date
of
such month, and (b) Full Principal Prepayments received after the 15th day
of
the month in which a Remittance Date occurs shall be remitted to the Owner
on
the next following Remittance Date, plus, to the extent not already deposited
in
the Custodial Account, the sum of (ii) all Monthly Advances, if any, which
the
Servicer is obligated to distribute pursuant to Section 5.03 and (iii) all
Prepayment Interest Shortfalls the Servicer is required to make up pursuant
to
Section 4.04, minus (iv) any amounts attributable to Monthly Payments collected
after the Cut-off Date but due on a Due Date or Dates subsequent to the last
day
of the related Due Period, which amounts shall be remitted on the related
Remittance Date next succeeding the Due Period for such amounts.
With
respect to any remittance received by the Owner after the Business Day on which
such payment was due, the Servicer shall pay to the Owner interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the
date
of each change, plus two percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be
remitted to the Owner by the Servicer on the date such late payment is made
and
shall cover the period commencing with the day following such Business Day
and
ending with the Business Day on which such payment is made, both
inclusive. The payment by the Servicer of any such interest shall not
be deemed an extension of time for payment or a waiver of any Event of Default
by the Servicer.
Section
5.02 Statements to the Owner and the Master
Servicer.
The
Servicer shall furnish to the Owner and the Master Servicer an individual
Mortgage Loan accounting report (a ”Report”), as of the last Business Day of
each month and the end of the related Prepayment Period, as applicable, in
the
Servicer's assigned loan number order to document Mortgage Loan payment activity
on an individual Mortgage Loan basis. With respect to each month,
such Report shall be received by the Owner and the Master Servicer no later
than
the fifth Business Day of the month of the related Remittance Date (or, with
respect to information as to Full Principal Prepayments and prepayment penalties
no later than one (1) Business Day after the end of each Prepayment Period),
a
report in an Excel (or compatible) electronic format, in such format as may
be
mutually agreed upon by both the Owner and the Servicer, and which shall provide
the information required to be contained in the monthly statements to
certificateholders as specified in the related pooling and servicing Agreement,
to the extent applicable to the Servicer.
In
addition, the Servicer shall provide to the Master Servicer and the Owner such
other information known or available to the Servicer that is necessary in order
to provide the distribution and pool performance information as required under
Regulation AB, as amended from time to time, as determined by the Owner in
its
sole discretion. The Servicer shall also provide a monthly report, in
the form of Exhibit E and Exhibit F hereto, or such other form as
is mutually acceptable to the Servicer, the Owner and the Master Servicer,
Exhibit K and Exhibit L with respect to defaulted mortgage loans,
Exhibit M with respect to realized losses and gains, Exhibit N
with respect to modified mortgage loans, Exhibit O with respect to claims
submitted and Exhibit P with respect to loss severity, with each such
report.
The
Servicer shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
Owner or the Master Servicer pursuant to any applicable law with respect to
the
Mortgage Loans and the transactions contemplated hereby. In addition,
the Servicer shall provide the Owner and the Master Servicer with such
information concerning the Mortgage Loans as is necessary for the Owner and
the
Master Servicer to prepare its federal income tax return as Owner and the Master
Servicer may reasonably request from time to time.
In
addition, not more than 60 days after the end of each calendar year, the
Servicer shall furnish to each Person who was an Owner and the Master Servicer
at any time during such calendar year an annual statement in accordance with
the
requirements of applicable federal income tax law as to the aggregate of
remittances of principal and interest for the applicable portion of such
year.
Section
5.03. Monthly Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Servicer shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 4.01, of Monthly Payments, adjusted to the related Mortgage
Loan Remittance Rate, which are delinquent at the close of business on the
related Determination Date; provided, however, that the amount of any such
deposit may be reduced by the Amount Held for Future Distribution (as defined
below) then on deposit in the Custodial Account. Any portion of the
Amount Held for Future Distribution used to pay Monthly Advances shall be
replaced by the Servicer by deposit into the Custodial Account on any future
Remittance Date to the extent that the funds that are available in the Custodial
Account for remittance to the Owner on such Remittance Date are less than the
amount of payments required to be made to the Owner on such Remittance
Date.
The
"Amount Held for Future Distribution" as to any Remittance Date shall be the
total of the amounts held in the Custodial Account at the close of business
on
the preceding Determination Date which were received after the Cut-off Date
on
account of (i) Liquidation Proceeds, Insurance Proceeds, and Principal
Prepayments received or made in the month of such Remittance Date, and (ii)
payments which represent early receipt of scheduled payments of principal and
interest due on a date or dates subsequent to the related Due Date.
The
Servicer's obligation to make such Monthly Advances as to any Mortgage Loan
will
continue through the final disposition or liquidation of the Mortgaged Property,
unless the Servicer deems such advance to be nonrecoverable from Liquidation
Proceeds, REO Disposition Proceeds or Insurance Proceeds with respect to the
applicable Mortgage Loan. In such latter event, the Servicer shall
deliver to the Owner an Officer's Certificate of the Servicer to the effect
that
an officer of the Servicer has reviewed the related Servicing File and has
obtained a recent appraisal and has made the reasonable determination that
any
additional advances are nonrecoverable from Liquidation or Insurance Proceeds
with respect to the applicable Mortgage Loan.
Section
5.04. Liquidation Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Owner pursuant to a deed-in-lieu of foreclosure, the Servicer shall submit
to the Owner a liquidation report with respect to such Mortgaged Property in
such form as the Servicer and the Owner shall agree. The Servicer
shall also provide reports on the status of REO Property containing such
information as Owner may reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01. Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of a Mortgaged Property (whether by absolute
conveyance or by contract of, sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law or the terms of the
Mortgage Note from doing so or if the exercise of such rights would impair
or
threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable
under applicable law to enforce such "due-on-sale" clause, the Servicer, will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. Where an
assumption is allowed pursuant to this Section 6.01, the Servicer, with the
prior consent of the primary mortgage insurer, if any, is authorized to enter
into a substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original mortgagor is released from liability and such Person is substituted
as
mortgagor and becomes liable under the related Mortgage Note. Any
such substitution of liability agreement shall be in lieu of an assumption
agreement.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of the Xxxxxx Xxx
Guide. With respect to an assumption or substitution of liability,
the Mortgage Interest Rate borne by the related Mortgage Note and the amount
of
the Monthly Payment may not be changed. The Servicer shall notify the
Owner that any such substitution of liability or assumption agreement has been
completed by forwarding to the Owner the original of any such substitution
of
liability or assumption agreement, which document shall be added to the related
Mortgage Loan Documents and shall, for all purposes, be considered a part of
such related mortgage file to the same extent as all other documents and
instruments constituting a part thereof. All fees collected by the
Servicer for entering into an assumption or substitution of liability agreement
shall belong to the Servicer.
Notwithstanding
the foregoing paragraphs of this section or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of
a
Mortgage Loan by operation of law or any assumption which the Servicer may
be
restricted by law from preventing, for any reason whatsoever. For
purposes of this Section 6.01, the term "assumption" is deemed to also include
a
sale of the Mortgaged Property subject to the Mortgage that is not accompanied
by an assumption or substitution of liability agreement.
Section
6.02. Satisfaction of Mortgages and Release of Mortgage
Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer will immediately notify
the
Custodian with a certification and request for release by a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited
in
the Custodial Account pursuant to Section 4.04 have been so deposited, and
a
request for delivery to the Servicer of the portion of the Mortgage Loan
Documents held by the Custodian. Upon receipt of such certification
and request, the Owner shall promptly release or cause the Custodian to promptly
release the related Mortgage Loan Documents to the Servicer and the Servicer
shall prepare and deliver for execution by the Owner or at the Owner's option
execute under the authority of a power of attorney delivered to the Servicer
by
the Owner any satisfaction or release. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the Custodial Account.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Owner may have under the mortgage instruments,
the Servicer, upon written demand, shall remit within one Business Day to the
Owner the then outstanding principal balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Servicer shall maintain
the Fidelity Bond insuring the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, upon request of the Servicer and delivery to the Custodian
of
a servicing receipt signed by a Servicing Officer, the Custodian shall release
the portion of the Mortgage Loan Documents held by the Custodian to the
Servicer. Such servicing receipt shall obligate the Servicer to promptly return
the related Mortgage Loan Documents to the Custodian, when the need therefor
by
the Servicer no longer exists, unless the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Custodial Account or such documents have been delivered to an attorney,
or
to a public trustee or other public official as required by law, for purposes
of
initiating or pursuing legal action or other proceedings for the foreclosure
of
the Mortgaged Property either judicially or non-judicially, and the Servicer
has
promptly delivered to the Owner or the Custodian a certificate of a Servicing
Officer certifying as to the name and address of the Person to which such
documents were delivered and the purpose or purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated, the servicing receipt shall
be
released by the Owner or the Custodian, as applicable, to the
Servicer.
Section
6.03. Servicing Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Servicer's Servicing
Fee. Additional servicing compensation in the form of assumption
fees, as provided in Section 6.01, late payment charges and other ancillary
fees
shall be retained by the Servicer to the extent not required to be deposited
in
the Custodial Account. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided for.
Section
6.04. Annual Statement as to Compliance; Annual
Certification.
(a) The
Servicer will deliver to the Owner and the Master Servicer, not later than
March
15th of each calendar year beginning in 2008, an Officer’s Certificate (an
“Annual Statement of Compliance”) stating, as to each signatory thereof, that
(i) a review of the activities of the Servicer during the preceding calendar
year and of performance under this Agreement or other applicable servicing
agreement has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement or other applicable servicing agreement
in all material respects throughout such year, or, if there has been a failure
to fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status of cure provisions
thereof. Such Annual Statement of Compliance shall contain no
restrictions or limitations on its use. Copies of such statement
shall be provided by the Servicer to the Owner upon request and by the Owner
to
any Person identified as a prospective purchaser of the Mortgage
Loans. In the event that the Servicer has delegated any servicing
responsibilities with respect to the Mortgage Loans to a Subservicer, the
Servicer shall deliver an Annual Statement of Compliance of the Subservicer
as
described above as to each Subservicer as and when required with respect to
the
Servicer.
(b) With
respect to the Mortgage Loans, by March 15th of each calendar year beginning
in
2008, an officer of the Servicer shall execute and deliver an Officer’s
Certificate (an “Annual Certification”) to the Owner, the Master Servicer, the
Trustee, and any related Depositor for the benefit of each such entity and
such
entity’s affiliates and the officers, directors and agents of any such entity
and such entity’s affiliates, in the form attached hereto as Exhibit
G. In the event that the Servicer has delegated any servicing
responsibilities with respect to the Mortgage Loans to a Subservicer or a
Subcontractor, to the extent such Subcontractor is “participating in the
servicing function” pursuant to Item 1122 of Regulation AB, the Servicer shall
deliver an Annual Certification as to each such Subservicer and Subcontractor,
as and when required with respect to the Servicer.
In
the
event the Servicer or any Subservicer or Subcontractor engaged by it is
terminated, assigns its rights and obligations under, or resigns pursuant to
the
terms of this Agreement, or any other applicable agreement in the case of a
Subservicer or Subcontractor, as the case may be, such party shall provide
an
Annual Statement of Compliance pursuant to this Section 6.04 or to the related
section of such other applicable agreement, as the case may be, as to the
performance of its obligations with respect to the period of time it was subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
The
Servicer shall indemnify and hold harmless the Master Servicer and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 6.04 or Section 6.09 or the negligence, bad
faith
or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, then the Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer as a result of the losses,
claims, damages or liabilities of the Master Servicer in such proportion as
is
appropriate to reflect the relative fault of the Master Servicer on the one
hand
and the Servicer on the other in connection with a breach of the Servicer’s
obligations under this Section 6.04 or Section 6.09 or the Servicer’s
negligence, bad faith or willful misconduct in connection
therewith.
Upon
request by the Owner or the Master Servicer, the Servicer will deliver to such
requesting party a copy of the audited (if such financial statements are
available, otherwise unaudited) financial statements of the Servicer for the
most recent fiscal year of the Servicer.
Section
6.05. [Reserved]
Section
6.06. Owner's Right to Examine Servicer
Records.
The
Owner
shall have the right to examine and audit, at its expense, upon reasonable
notice to the Servicer, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Servicer, or held by another for
the
Servicer or on its behalf or otherwise, which relate to the performance or
observance by the Servicer of the terms, covenants or conditions of this
Agreement.
The
Servicer shall provide to the Owner and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Owner access to any documentation regarding the Mortgage Loans in the possession
of the Servicer which may be required by any applicable
regulations. Such access shall be afforded without charge, upon
reasonable request, during normal business hours and at the offices of the
Servicer, and in accordance with the applicable federal or state government
regulations.
Section
6.07. Compliance
with REMIC
Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be could (i) endanger the status of the REMIC as a REMIC or (ii)
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 "contribution" to a REMIC set forth in Section 860G(d)
of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section
6.08. Non-solicitation.
The
Servicer shall not knowingly conduct any solicitation exclusively targeted
to
the Mortgagors for the purpose of inducing or encouraging the early prepayment
or refinancing of the related Mortgage Loans. It is understood and
agreed that promotions undertaken by the Servicer or any agent or affiliate
of
the Servicer which are directed to the general public at large, including,
without limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this section. Nothing contained herein shall prohibit the
Servicer from (i) distributing to Mortgagors any general advertising including
information brochures, coupon books, or other similar documentation which
indicates services the Servicer offers, including refinances or (ii) providing
financing of home equity loans to Mortgagors at the Mortgagor's
request.
Section
6.09. Assessment of Compliance with Servicing
Criteria.
On
and
after January 1, 2007, the Servicer shall service and administer, and shall
cause each subservicer to service or administer, the Mortgage Loans in
accordance with all applicable requirements of the Servicing
Criteria.
With
respect to the Mortgage Loans, the Servicer shall deliver to the Owner or its
designee, the Master Servicer, the Trustee, and any Depositor on or before
March
15th of each calendar year beginning in 2008, a report (an “Assessment of
Compliance”) regarding the Servicer’s assessment of compliance with the
Servicing Criteria during the preceding calendar year as required by Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB, or as
otherwise required by the Master Servicer, which as of the date hereof, require
a report by an authorized officer of the Servicer that contains the
following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the
Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit J hereto.
With
respect to the Mortgage Loans, on or before March 15th of each calendar year
beginning in 2008, the Servicer shall furnish to the Owner or its designee,
the
Master Servicer, the Trustee and any Depositor a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the Servicer, as required by Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, or as
otherwise required by the Master Servicer, which Attestation Report must be
made
in accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
The
Servicer shall cause each Subservicer, and each Subcontractor determined by
the
Servicer pursuant to Section 11.15 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Owner, the Master Servicer, the Trustee and any Depositor an assessment of
compliance and accountants’ attestation as and when provided in Section
6.09.
In
the event the Servicer or any
Subservicer or Subcontractor engaged by it is terminated, assigns its rights
and
obligations under, or resigns pursuant to, the terms of this Agreement, or
any
other applicable agreement in the case of a Subservicer or Subcontractor, as
the
case may be, such party shall provide an Assessment of Compliance and cause
to
be provided an Attestation Report pursuant to this Section 6.09 or to the
related section of such other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or
resignation.
Section
6.10. Intent of the Parties;
Reasonableness.
The
Owner
and the Servicer acknowledge and agree that a purpose of clause (g) of Article
III, Sections 5.02, 6.04, 6.09 and 10.02 of this Agreement is to facilitate
compliance by the Owner and any Depositor with the provisions of Regulation
AB
and related rules and regulations of the Commission. None of the Owner, the
Master Servicer or 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. The
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Owner 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 Pass-Through Transfer, the Servicer shall
cooperate fully with the Owner to deliver to the Owner (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Owner or any Depositor to permit the Owner or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Servicer, any Subservicer and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Owner or any
Depositor to be necessary in order to effect such compliance.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01. Servicer Shall Provide Information as Reasonably
Required.
The
Servicer shall furnish to the Owner upon request, during the term of this
Agreement, such periodic, special or other reports or information, whether
or
not provided for herein, as shall be necessary, reasonable or appropriate with
respect to the purposes of this Agreement. The Servicer may negotiate
with the Owner for a reasonable fee for providing such report or information,
unless (i) the Servicer is required to supply such report or information
pursuant to any other section of this Agreement, or (ii) the report or
information has been requested in connection with Internal Revenue Service
or
other regulatory agency requirements. All such reports or information
shall be provided by and in accordance with all reasonable instructions and
directions given by the Owner. The Servicer agrees to execute and deliver all
such instruments and take all such action as the Owner, from time to time,
may
reasonably request in order to effectuate the purpose and to carry out the
terms
of this Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01. Indemnification; Third Party
Claims.
The
Servicer agrees to indemnify the Owner, its successors and assigns, any agent
of
the Owner, and the Master Servicer, and hold each of such Persons harmless
from
and against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that such Person may sustain in any way related to the failure of the Servicer
to perform in any way its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement and for breach of any representation
or warranty of the Servicer contained herein. The Servicer shall
immediately notify the Owner or other indemnified Person if a claim is made
by a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the consent of the Owner and such other Indemnified Person and with counsel
reasonably satisfactory to the Owner and such Person) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees,
and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or such other indemnified Person in respect of such claim but failure
to so notify the Owner and such other indemnified Person shall not limit its
obligations hereunder. The Servicer agrees that it will not enter
into any settlement of any such claim without the consent of the Owner and
such
other indemnified Person unless such settlement includes an unconditional
release of the Owner and such other indemnified Person from all liability that
is the subject matter of such claim. The provisions of this Section
8.01 shall survive termination of this Agreement.
Section
8.02. Merger or Consolidation of the
Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, or which is a HUD-approved
mortgagee whose primary business is in origination and servicing of first lien
mortgage loans, and (iii) which is a Xxxxxx Mae or Xxxxxxx Mac approved
seller/servicer in good standing.
Section
8.03. Limitation on Liability of the Servicer and
Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer shall
be under any liability to the Owner for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment made in good faith; provided, however, that this provision shall
not
protect the Servicer or any such person against any breach of warranties or
representations made herein, or failure to perform in any way its obligations
in
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of gross negligence or
any
breach of the terms and conditions of this Agreement. The Servicer
and any officer, employee or agent of the Servicer may rely in good faith on
any
document of any kind prima facie properly executed and submitted by the Owner
respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its opinion may involve it in any expenses or
liability; provided, however, that the Servicer may, with the consent of the
Owner, which consent shall not be unreasonably withheld, undertake any such
action which it may deem necessary or desirable with respect to this Agreement
and the rights and duties of the parties hereto. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Owner will
be
liable, and the Servicer shall be entitled to be reimbursed therefor from the
Custodial Account pursuant to Section 4.05.
Section
8.04. Servicer Not to Resign.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Servicer and the Owner or upon the determination
that its duties hereunder are no longer permissible under applicable law and
such incapacity cannot be cured by the Servicer. Any such
determination permitting the resignation of the Servicer shall be evidenced
by
an Opinion of Counsel to such effect delivered to the Owner which Opinion of
Counsel shall be in form and substance acceptable to the Owner. No
such resignation shall become effective until a successor shall have assumed
the
Servicer's responsibilities and obligations hereunder in the manner provided
in
Section 11.01.
Section
8.05. No Transfer of Servicing.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, the Servicer acknowledges that the Owner has acted in reliance upon
the Servicer's independent status, the adequacy of its servicing facilities,
plan, personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the
generality of this section, the Servicer shall not either assign this Agreement
or the servicing hereunder or delegate its rights or duties hereunder or any
portion thereof, or sell or otherwise dispose of all or substantially all of
its
property or assets, without the prior written approval of the Owner, which
approval shall not be unreasonably withheld; provided that the Servicer may
assign the Agreement and the servicing hereunder without the consent of Owner
to
an affiliate of the Servicer to which all servicing of the Servicer is assigned
so long as (i) such affiliate is a Xxxxxx Xxx and Xxxxxxx Mac approved servicer
and (ii) if it is intended that such affiliate be spun off to the shareholders
of the Servicer, such affiliate have a GAAP net worth of at least $25,000,000
and (iii) such affiliate shall deliver to the Owner a certification pursuant
to
which such affiliate shall agree to be bound by the terms and conditions of
this
Agreement and shall certify that such affiliate is a Xxxxxx Mae and Xxxxxxx
Mac
approved servicer in good standing.
ARTICLE
IX
DEFAULT
Section
9.01. Events of Default.
In
case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Owner any payment required to be made
under the terms of this Agreement which continues unremedied for one (1)
Business Day after written notice thereof (it being understood that this
subparagraph shall not affect Servicer's obligation pursuant to Section 5.01
to
pay default interest on any remittance received by the Owner after the Business
Day on which such payment was due); or
(ii) any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
set
forth in this Agreement (other than those described in clause (ix) hereof),
the
breach of which has a material adverse effect and which continue unremedied
for
a period of thirty days (except that such number of days shall be fifteen in
the
case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement and such failure shall be deemed to have a
material adverse effect) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the
Owner; or
(iii) a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
days; or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) the
Servicer ceases to be approved by either Xxxxxx Xxx or Xxxxxxx Mac (to the
extent such entities are then operating in a capacity similar to that in which
they operate on the date hereof) as a mortgage loan servicer for more than
thirty days to the extent such entities perform similar functions;
or
(vii) the
Servicer attempts to assign its right to servicing compensation hereunder or
the
Servicer attempts, without the consent of the Owner, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof except as otherwise permitted herein;
or
(viii)
the Servicer ceases to be qualified to transact business in any jurisdiction
where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Servicer's ability to
perform its obligations hereunder; or
(ix) failure
by the Servicer to duly perform, within the required time period, its
obligations under Section 6.04, 6.09 or any of clauses (v) through (viii) of
Section 10.02;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Owner, by notice in writing to the Servicer may, in addition
to
whatever rights the Owner may have under Section 8.01 and at law or equity
to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of the Servicer (and if the Servicer is servicing any
of
the Mortgage Loans in a Pass-Through Transfer, appoint a successor servicer
reasonably acceptable to the Master Servicer for such Pass-Through Transfer)
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Servicer for the same. On or after the
receipt by the Servicer of such written notice, all authority and power of
the
Servicer 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 11.01. Upon written request from the Owner, the Servicer
shall prepare, execute and deliver, any and all documents and other instruments,
place in such successor's possession all Servicing Files, and do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise, at the
Servicer's sole expense. The Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Servicer'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 Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer and
the
transfer of servicing of the Mortgage Loans to a successor servicer, if the
termination and/or transfer of servicing is for cause related to a servicer
default. The provisions of this paragraph shall not limit whatever rights the
Owner 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.
Section
9.02. Waiver of Defaults.
The
Owner
may waive only by written notice any default by the Servicer in the performance
of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to
the
extent expressly so waived in writing.
ARTICLE
X
TERMINATION
Section
10.01. Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Servicer and the Owner in writing; or (iii) termination by the
Owner pursuant to Section 9.01. Simultaneously with any such termination and
the
transfer of servicing hereunder, the Servicer shall be entitled to be reimbursed
for any outstanding Servicing Advances and Monthly Advances.
Section
10.02. Cooperation of Servicer with a
Reconstitution.
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, on or after the related closing date, on one or more dates (each a
"Reconstitution Date") at the Owner's sole option, the Owner may effect a sale
(each, a "Reconstitution") of some or all of the Mortgage Loans then subject
to
this Agreement, without recourse, to:
(a) one
or more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or more trusts or other entities to be formed as part of one or more
Pass-Through Transfers.
The
Servicer agrees to execute in connection with any agreements among the Owner,
the Servicer, and any servicer in connection with a Whole Loan Transfer, an
assignment, assumption and recognition agreement, or, at Owner’s request, a
seller's warranties and servicing agreement or a participation and servicing
agreement or similar agreement in form and substance reasonably acceptable
to
the parties, and in connection with a Pass-Through Transfer, a pooling and
servicing agreement in form and substance reasonably acceptable to the
parties. It is understood that any such Reconstitution Agreements
will not contain any greater obligations on the part of Servicer than are
contained in this Agreement.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and
any
prospective purchaser with respect to all reasonable requests and due diligence
procedures; (2) to execute, deliver and perform all Reconstitution Agreements
required by the Owner; (3) to restate the representations and warranties set
forth in this Agreement as of the settlement or closing date in connection
with
such Reconstitution (each, a "Reconstitution Date").
In
addition, the Servicer shall provide to such servicer or issuer, as the case
may
be, and any other participants in such Reconstitution:
(i) any
and all information and appropriate verification of information which may be
reasonably available to the Servicer, whether through letters of its auditors
and counsel or otherwise, as the Owner or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Servicer
as are reasonably agreed upon by the Servicer and the Owner or any such other
participant;
(iii) within
5 Business Days after request by the Owner, the information with respect to
the
Servicer (as servicer) as required by Item 1108(b) and (c) of Regulation AB,
a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit I for convenience of reference only, as determined by Owner in
its sole discretion. In the event that the Servicer has delegated any
servicing responsibilities with respect to the Mortgage Loans to a Subservicer,
the Servicer shall provide the information required pursuant to this clause
with
respect to the Subservicer;
(iv) within
5 Business Days after request by the Owner,
(a)
information regarding any legal
proceedings pending (or known to be contemplated) against the Servicer (as
servicer) and each Subservicer as required by Item 1117 of Regulation AB, a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit I for convenience of reference only, as determined by Owner in
its sole discretion,
(b)
information regarding affiliations
with respect to the Servicer (as servicer) and each Subservicer as required
by
Item 1119(a) of Regulation AB, a summary of the requirements of which as of
the
date hereof is attached hereto as Exhibit I for convenience of reference
only, as determined by Owner in its sole discretion, and
(c)
information regarding relationships and transactions with respect to the
Servicer (as servicer) and each Subservicer as required by Item 1119(b) and
(c)
of Regulation AB, a summary of the requirements of which as of the date hereof
is attached hereto as Exhibit I for convenience of reference only, as
determined by Owner in its sole discretion;
(v) for
the purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Servicer shall (or shall
cause each Subservicer to) (i) provide prompt notice to the Owner, the Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B) any
affiliations or relationships that develop following the closing date of a
Pass-Through Transfer between the Servicer or any Subservicer and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Pass-Through Transfer, (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
Servicer, and (E) the Servicer’s entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Servicer’s obligations under
this Agreement or any Reconstitution Agreement and (ii) provide to the Owner
and
any Depositor a description of such proceedings, affiliations or
relationships;
(vi) as
a condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer,
and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner and any Depositor
of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Owner and such Depositor, all information
reasonably requested by the Owner or any Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities;
(vii) in
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Pass-Through Transfer that includes any of the Mortgage Loans
serviced by the Servicer or any Subservicer, the Servicer or such Subservicer,
as applicable, shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such report (including,
if applicable, the Master Servicer) notice of the occurrence of any of the
following events 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);
and
(viii) the
Servicer shall provide to the Owner, the 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 Servicer or any Subservicer or the Servicer or such
Subservicer’s performance hereunder.
In
the
event of a conflict or inconsistency between the terms of Exhibit I and
the text of the applicable Item of Regulation AB as cited above, the text of
Regulation AB, its adopting release and other public statements of the SEC
shall
control.
The
Servicer shall indemnify the Owner, each affiliate of the Owner, and each of
the
following parties participating in a Pass-Through Transfer: each issuing entity;
each Person (including, but not limited to, the Master Servicer, if applicable)
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Pass-Through Transfer, 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 Pass-Through Transfer; 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 this Section 10.02 by or on behalf of the Servicer,
or
provided under this Section 10.02, Sections 6.04 and 6.09 and by or on behalf
of
any Subservicer or Subcontractor (collectively, the “Servicer Information”), or
(B) the omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii)
any
breach by the Servicer of its obligations under this Section 10.02, including
particularly any failure by the Servicer, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 10.02, including any failure
by
the Servicer to identify pursuant to Section 11.15 any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;
(iii)
any
breach by the Servicer of a representation or warranty set forth in Section
Article III or in a writing furnished pursuant to clause (h) of Article III
and
made as of a date prior to the closing date of the related Pass-Through
Transfer, to the extent that such breach is not cured by such closing date,
or
any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to clause (h) of Article III to the extent made as of a
date
subsequent to such closing date; or
(iv)
the
negligence bad faith or willful misconduct of the Servicer in connection with
its performance under this Section 10.02.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Servicer agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall promptly
reimburse the Owner, 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 Pass-Through Transfer, 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 Pass-Through Transfer, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants’ letter or other material not delivered pursuant to
this Section or Section 6.04 or Section 6.09 as required by the Servicer, any
Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass
Through Transfer shall be subject to this Agreement and shall continue to be
serviced in accordance with the terms of this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
Section
10.03. Master Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf
of the Owner, shall have the same rights as the Owner to enforce the obligations
of the Servicer under this Agreement. The Master Servicer, or the
entity specified in the related pooling and servicing agreement, shall be
entitled to terminate the rights and obligations of the Servicer under this
Agreement upon the failure of the Servicer to perform any of its obligations
under this Agreement if such failure constitutes an Event of Default as provided
in Article IX of this Agreement. Notwithstanding anything to the
contrary, in no event shall the Master Servicer assume any of the obligations
of
the Owner under this Agreement.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Successor to the Servicer.
Prior
to
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 9.01 or 10.01(ii), the Owner shall (i) succeed to
and
assume all of the Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 8.02 hereof and which shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Servicer under this
Agreement prior to the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement. In connection with such
appointment and assumption, the Owner may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as the Owner
and such successor shall agree. In the event that the Servicer's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation
or removal of the Servicer pursuant to the aforementioned sections shall not
become effective until a successor shall be appointed pursuant to this section
and shall in no event relieve the Servicer of the representations and warranties
made pursuant to Article III and the remedies available to the Owner under
Section 8.01, it being understood and agreed that the provisions of such Article
III and Section 8.01 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Owner an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or this Agreement pursuant to Section
8.04, 9.01 or 10.01 shall not affect any claims that the Owner may have against
the Servicer arising prior to any such termination or resignation.
The
Servicer shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Servicing Files and related documents
and
statements held by it hereunder and the Servicer shall account for all
funds. The Servicer shall execute and deliver such instruments and do
such other things all as may reasonably be required to more fully and definitely
vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer. The
successor shall make such arrangements as it may deem appropriate to reimburse
the Servicer for unrecovered Monthly Advances and Servicing Advances which
the
successor retains hereunder and which would otherwise have been recovered by
the
Servicer pursuant to this Agreement but for the appointment of the successor
servicer.
Upon
a
successor's acceptance of appointment as such, the Servicer shall notify the
Owner of such appointment.
All
reasonable costs and expenses incurred in connection with replacing the Servicer
upon its resignation or the termination of the Servicer in accordance with
the
terms of this Agreement, including, without limitation, (i) all legal costs
and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an Event of Default
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with this Agreement, shall be payable on demand
by
the resigning or terminated Servicer without any right of reimbursement
therefor.
Section
11.02. Amendment.
This
Agreement may be amended from time to time by the Servicer and the Owner by
written agreement signed by the Servicer and the Owner.
Section
11.03. Recordation of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Servicer at the Owner's
expense on direction of the Owner accompanied by an opinion of counsel to the
effect that such recordation materially and beneficially affects the interest
of
the Owner or is necessary for the administration or servicing the Mortgage
Loans.
Section
11.04. Governing Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS. THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
(i) if
to the Servicer:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention: General
Counsel
Telecopier
No.: (000) 000-0000
(ii) if
to the Owner:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Global
Credit Administration
Telecopier
No.: (000) 000-0000
(iii) if
to the Master Servicer:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention: Xxxxxxxx
Xxxxx
Telecopier
No.: (000) 000-0000
Email:
xxxxxx@xxxx.xxx
or
such
other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice, or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the address (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section
11.06. Severability of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which
prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the
same
as the economic effect of this Agreement without regard to such
invalidity.
Section
11.07. Exhibits
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
11.08. General Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to "Articles," "Sections," "Subsections," "Paragraphs," and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words "herein," "hereof," "hereunder" and other words of similar import refer
to
this Agreement as a whole and not to any particular provision; and
(vi) the
term "include" or "including" shall mean without limitation by reason of
enumeration.
Section
11.09. Reproduction of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any
such reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10. Confidentiality of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by
law, each party agrees to keep all non-public information regarding the other
party strictly confidential, and to use all such information solely in order
to
effectuate the purpose of this Agreement.
Section
11.11. Assignment by the Owner.
The
Owner
shall have the right, without the consent of the Servicer hereof, to assign,
in
whole or in part, its interest under this Agreement with respect to some or
all
of the Mortgage Loans, and designate any person to exercise any rights of the
Owner hereunder, by executing an assignment and assumption agreement reasonably
acceptable to the Servicer and the assignee or designee shall accede to the
rights and obligations hereunder of the Owner with respect to such Mortgage
Loans. In no event shall Owner sell a partial interest in any
Mortgage Loan. All references to the Owner in this Agreement shall be
deemed to include its assignees or designees. It is understood and
agreed between the Owners and the Servicer that no more than five (5) Persons
shall have the right of owner under this Agreement at any one time.
Section
11.12. No Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Servicer shall
be rendered as an independent contractor and not as agent for
Owner.
Section
11.13. Execution, Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.05, this Agreement shall
inure to the benefit of and be binding upon the Servicer and the Owner and
their
respective successors and assigns.
Section
11.14. Entire Agreement.
Each
of
the Servicer and the Owner acknowledge that no representations, agreements
or
promises were made to it by the other party or any of its employees other than
those representations, agreements or promises specifically contained
herein. This Agreement sets forth the entire understanding between
the parties hereto and shall be binding upon all successors of both
parties.
Section
11.15. Use of Subservicers and
Subcontractors.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the servicers of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (d) of this Section. The Servicer must notify the Owner,
the Master Servicer and any Depositor in writing of any affiliations or
relationships that develop following the closing date between the Servicer
or
any Subservicer.
(b) The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with
the
provisions of this Section and with clauses (g) and (j) of Article III, Sections
6.04, 6.09 and 10.02 of this Agreement to the same extent as if such Subservicer
were the Owner, and to provide the information required with respect to such
Subservicer under Section 3.01(i) of this Agreement. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Owner,
the
Master Servicer and any Depositor any Annual Statement of Compliance required
to
be delivered by such Subservicer under Section 6.04(a), any Assessment of
Compliance and Attestation Report required to be delivered by such Subservicer
under Section 6.09, any Annual Certification required under Section 6.04(b),
any
Additional Form 10-D Disclosure and any Form 8-K Disclosure Information, as
and
when required to be delivered.
(c) The
Servicer shall promptly upon request provide to the Owner, the 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 Owner, the Master
Servicer and such Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Subservicer, specifying (i) the identity of
each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
(d) 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 Servicer shall cause any such
Subcontractor used by the Servicer (or by any Subservicer) for the benefit
of
the Owner and any Depositor to comply with the provisions of Sections 6.07
and
10.02 of this Agreement to the same extent as if such Subcontractor were the
Servicer. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Owner and any Depositor any Assessment
of
Compliance and Attestation Report and other certificates required to be
delivered by such Subservicer and such Subcontractor under Section 6.09 (and
any
Annual Certification required under Section 6.09(b)), in each case as and when
required to be delivered.
11.16. 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.
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the date
and
year first above written.
|
EMC
MORTGAGE CORPORATION,
as
Servicer
|
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By:
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Name:
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Title:
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STRUCTURED
ASSET MORTGAGE INVESTMENTS II
INC.,
as
Owner
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By:
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Name:
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Xxxxx
Xxxxxxxxxxx
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Title:
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Vice
President
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EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
(date)
To:______________________
_________________________
_________________________
(the
"Depository")
As
"Servicer" under the Servicing Agreement, dated as of March 1, 2007, (the
"Agreement"), we hereby authorize and request you to establish an account,
as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
"EMC Custodial Account, in trust for XXXX XX, Owner of Whole Loan Mortgages,
and
various Mortgagors." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
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By:
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Name:
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Title:
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The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number __________, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account
will be insured up to applicable limits by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund or the Savings Association Insurance
Fund or will be invested in Permitted Investments as defined in the
Agreement.
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[ ]
(name
of Depository)
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By:
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Name:
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Title:
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EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
(date)
To:___________________________
______________________________
______________________________
(the
"Depository")
As
"Servicer" under the Servicing Agreement, dated as of March 1, 2007 (the
"Agreement"), we hereby authorize and request you to establish an account,
as an
Escrow Account pursuant to Section 4.06 of the Agreement, to be designated
as
"EMC Escrow Account, in trust for XXXX XX, Owner of Whole Loan Mortgages, and
various Mortgagors." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
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By:
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Name:
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Title:
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The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number __________, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account
will be insured up to applicable limits by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund or the Savings Association Insurance
Fund or will be invested in Permitted Investments as defined in the
Agreement.
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[ ]
(name
of Depository)
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By:
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Name:
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Title:
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EXHIBIT
D
REQUEST
FOR RELEASE OF DOCUMENTS
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To:
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U.S.
Bank National Association
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Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
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||
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Xxxxxx,
XX
00000
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Attn: ________________
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Re:
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Custodial
Agreement dated as of March 30, 2007, between EMC Mortgage Corporation
and
U.S. Bank National Association, as
Custodian
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In
connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custody Agreement,
we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason
indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
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_______
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1.
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Mortgage
Paid in Full
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_______
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2.
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Foreclosure
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_______
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3.
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Substitution
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_______
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4.
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Other
Liquidation (Repurchases, etc.)
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_______
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5.
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Nonliquidation
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[Reason:_______________________________]
Address
to which Custodian should
Deliver
the Custodian's Mortgage File:
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By:
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(authorized
signer)
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Issuer:
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Address:
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Date:
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Custodian
U.S.
Bank
National Association
Please
acknowledge the execution of the above request by your signature and date
below:
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Signature
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Date
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Documents
returned to Custodian:
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||||
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Custodian:
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Date:
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EXHIBIT
E
EMC
FORM
– REMITTANCE OVERVIEW REPORT
Remittance
Overview Report: Provides loan level detail regarding the
remittance that will be submitted to EMC Master Servicing and contains the
following data fields in the order below:
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Field
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Field
Description
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Deal
Name
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VARCHAR
(15)
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Master
Servicer Loan Number
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NUMERIC
(9,0)
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Current
Investor Category
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VARCHAR
(5)
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Original
Investor Category
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VARCHAR
(5)
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Servicer
Loan Number
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VARCHAR
(15)
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Cutoff
Date
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DATE
(MM/DD/YYYY)
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Loan
Next Due Date
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DATE
(MM/DD/YYYY)
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Gross
Interest Rate
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NUMERIC
(7,7)
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Net
Interest Rate
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NUMERIC
(7,7)
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Pending
Interest Rate
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NUMERIC
(7,7)
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Servicing
Fee Rate
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NUMERIC
(7,7)
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MI
Rate
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NUMERIC
(7,7)
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Scheduled
P&I Amount (P & I Constant)
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NUMERIC
(12,2)
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ARM
Index
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NUMERIC
(7,7)
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Pending
ARM Index
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NUMERIC
(7,7)
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Beginning
Scheduled Principal Balance
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NUMERIC
(12,2)
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Actual
Principal Remitted
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NUMERIC
(12,2)
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Actual
Principal Curtailment Remitted
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NUMERIC
(12,2)
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Curtailment
Adjustment Remitted
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NUMERIC
(12,2)
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Liquidation
Principal Remitted
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NUMERIC
(12,2)
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Principal
Not Advanced (stop advance loans only)
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NUMERIC
(12,2)
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Scheduled
Gross Interest
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NUMERIC
(12,2)
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Actual
Interest Remitted
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NUMERIC
(12,2)
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Scheduled
Service Fee Amount
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NUMERIC
(12,2)
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Soldiers
and Sailors Variance
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NUMERIC
(12,2)
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Net
Interest Not Advanced
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NUMERIC
(12,2)
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Prepayment
Penalty Remitted
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NUMERIC
(12,2)
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PMI
Premium Remitted
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NUMERIC
(12,2)
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Additional
Fees Remitted
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NUMERIC
(12,2)
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Ending
Scheduled Balance
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NUMERIC
(12,2)
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Actual
Amount Remitted Total (each loan)
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NUMERIC
(12,2)
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Beginning
Actual Balance
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NUMERIC
(12,2)
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Actual
Principal Collected
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NUMERIC
(12,2)
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Actual
Curtailments Collected
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NUMERIC
(12,2)
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Curtailment
Adjustment Collected
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NUMERIC
(12,2)
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Gross
Interest Collected
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NUMERIC
(12,2)
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Net
Interest Collected
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NUMERIC
(12,2)
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Service
Fee Collected
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NUMERIC
(12,2)
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Actual
Ending Principal Balance
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NUMERIC
(12,2)
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Liquidation
Date
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DATE
(MM/DD/YYYY)
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Liquidation
Type
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VARCHAR
(1)
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Gross
Liquidation Proceeds
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NUMERIC
(12,2)
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Liquidation
Expenses
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NUMERIC
(12,2)
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Principal
and Interest Advanced Balance
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NUMERIC
(12,2)
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Delinquent
Service Fee
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NUMERIC
(12,2)
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Calculated
Loss to Trust
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NUMERIC
(12,2)
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Net
Interest Remitted
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NUMERIC
(12,2)
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Collected
Interest Not Remitted
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NUMERIC
(12,2)
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Ending
Advance Balance
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NUMERIC
(12,2)
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Soldiers
and Sailors Flag
|
VARCHAR
(1)
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Soldiers
and Sailors Old Rate
|
NUMERIC
(7,7)
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Soldiers
and Sailors Old P & I
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NUMERIC
(12,2)
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Modified
Date
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DATE
(MM/DD/YYYY)
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Stop
Advance Flag
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Stop
Advance Date
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DATE
(MM/DD/YYYY)
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BPO
Value
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NUMERIC
(12,2)
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Cash
Flow Group
|
VARCHAR
(2)
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MSP
Principal Balance
|
NUMERIC
(12,2)
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Debt
Forgiven / Charged Off
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NUMERIC
(12,2)
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Mortgagor
PITI Payment
|
NUMERIC
(12,2)
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Bankruptcy
Status
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VARCHAR
(2)
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Foreclosure
Status
|
VARCHAR
(2)
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Modification
Status
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Interest
Only Loan
|
VARCHAR
(2)
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Escrowed
Loan
|
VARCHAR
(2)
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Monthly
Escrow Deposit
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NUMERIC
(12,2)
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Escrow
Balance
|
NUMERIC
(12,2)
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Escrow
Advance Balance
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NUMERIC
(12,2)
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Restricted
Escrow Balance
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NUMERIC
(12,2)
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Mortgagor
Recoverable Corporate Expense Balance
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NUMERIC
(12,2)
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Non-Recoverable
Corporate Expense Balance
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NUMERIC
(12,2)
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HUD
235 Loan Status
|
VARCHAR
(2)
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HUD
235 Balance
|
NUMERIC
(12,2)
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Late
Charge Balance
|
NUMERIC
(12,2)
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Buydown
Loan Status
|
VARCHAR
(2)
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Monthly
Buydown Amount
|
NUMERIC
(12,2)
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Monthly
Buydown Funds Balance
|
NUMERIC
(12,2)
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Prepayment
Penalty Amount Waived
|
NUMERIC
(12,2)
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Prepayment
Penalty Waived Reason Code
|
VARCHAR
(3)
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Material
Breach Status
|
VARCHAR
(3)
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Material
Breach Code
|
VARCHAR
(3)
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Prefunding
Date
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DATE
(MM/DD/YYYY)
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3rd
Party
Recoverable Expenses
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NUMERIC
(12,2)
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EXHIBIT
F
EMC
FORM
– REMITTANCE SUMMARY REPORT
Remittance
Summary Report: Provides summary data at a deal
(investor/category) level regarding the remittance that will be submitted to
EMC
Master Servicing and contains the following data fields in the order
below:
|
Field
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Field
Description
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Deal
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VARCHAR
(15)
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Investor
|
VARCHAR
(5)
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|
Category
|
VARCHAR
(5)
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|
Principal
Remitted
|
NUMERIC
(15,2)
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Curtailments
Remitted
|
NUMERIC
(15,2)
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Curtailment
Adjustments Remitted
|
NUMERIC
(15,2)
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Liquidation
Proceeds Remitted
|
NUMERIC
(15,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(15,2)
|
|
Principal
Amounts Called/Collapsed
|
NUMERIC
(15,2)
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|
Total
Principal Remitted
|
NUMERIC
(15,2)
|
|
Interest
Remitted
|
NUMERIC
(15,2)
|
|
PMI
Premiums Remitted
|
NUMERIC
(15,2)
|
|
Soldiers
and Sailors Difference
|
NUMERIC
(15,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(15,2)
|
|
Non
Comp Interest Remitted
|
NUMERIC
(15,2)
|
|
Prepayment
Penalties Remitted
|
NUMERIC
(15,2)
|
|
Total
Interest Remitted
|
NUMERIC
(15,2)
|
|
Arrearage
Amount Remitted
|
NUMERIC
(15,2)
|
|
Aggregate
Loss to Trust
Total
Manual Adjustments
|
NUMERIC
(15,2)
|
|
Debt
Forgiven/ Charged Off
|
NUMERIC
(15,2)
|
|
Additional
Fees Collected
|
NUMERIC
(15,2)
|
|
Total
Remittance
|
NUMERIC
(15,2)
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EXHIBIT
G
FORM
OF
SERVICER CERTIFICATION
Re: The
[ ]
agreement dated as of
[ l,
200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Trustee], and their officers, with the knowledge and intent that
they
will rely upon this certification, that:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, Officer’s Certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Trustee];
I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such
reports.
EXHIBIT
H
SUMMARY
OF REGULATION AB
SERVICING
CRITERIA
NOTE:
This Exhibit H is provided for convenience of reference only. In the
event of a conflict or inconsistency between the terms of this Exhibit H and
the
text of Regulation AB, the text of Regulation AB, its adopting release and
other
public statements of the SEC shall control.
Item
1122(d)
|
(a)
|
General
servicing considerations.
|
(1) Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with the transaction agreements.
(2) 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.
(3) Any
requirements in the transaction agreements to maintain a back-up servicer for
the mortgage loans are maintained.
(4) 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.
|
(b)
|
Cash
collection and administration.
|
(1) 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.
(2) Disbursements
made via wire transfer on behalf of an obligor or to an
investor are made only by authorized personnel.
(3) 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.
(4) 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.
(5) 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.
(6) Unissued
checks are safeguarded so as to prevent unauthorized access.
(7) 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.
|
(c)
|
Investor
remittances and reporting.
|
(1) 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.
(2) Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
(3) 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.
(4) Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment, or custodial bank statements.
|
(d)
|
Mortgage
Loan administration.
|
(1) Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
(2) Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
(3) 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.
(4) 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.
(5) The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
(6) 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 mortgage
loan documents.
(7) 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.
(8) 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).
(9) Adjustments
to interest rates or rates of return for mortgage loans with variable rates
are
computed based on the related mortgage loan documents.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(14) Delinquencies,
charge-offs and uncollectable accounts are recognized and recorded in accordance
with the transaction agreements.
(15) 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.
EXHIBIT
I
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit I is provided for convenience of reference only. In the
event of a conflict or inconsistency between the terms of this Exhibit I and
the
text of Regulation AB, the text of Regulation AB, its adopting release and
other
public statements of the SEC shall control.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Owner’s form of organization;
-a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Servicer that
may
be material to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including whether any default
or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Servicer, whether any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Servicer, and the extent
of
outsourcing the Servicer uses;
-a
description of any material changes to the Servicer’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Servicer’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance of
the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as the
Mortgage Loans, and the Servicer’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Servicer
on
the Mortgage Loans and the Servicer’s overall servicing portfolio for the past
three years; and
-the
Owner’s process for handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of REO Properties, foreclosure, sale of the Mortgage
Loans or workouts.
Item
1117
-describe
any legal proceedings pending against the Servicer or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued in
the
Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Servicer, each other originator of the Mortgage Loans
and each Subservicer with the sponsor, depositor, issuing entity, trustee,
any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Servicer, each other
originator of the Mortgage Loans and each Subservicer, or their respective
affiliates, and the sponsor, depositor or issuing entity or their respective
affiliates, that exists currently or has existed during the past two years,
that
may be material to the understanding of an investor in the securities issued
in
the Pass-Through Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Servicer, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity or
their respective affiliates, that exists currently or has existed during the
past two years.
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Key:
X
- obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset 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 pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset 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 pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset 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 pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
[NAME
OF OWNER] [NAME OF SUBSERVICER]
|
||
|
Date:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
K
EMC
FORM
– DEFAULT OVERVIEW REPORT
Default
Overview Report: Provides loan level detail regarding the
defaulted loans that are being serviced and reported to EMC Master
Servicing. The report contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Servicer
loan number
|
VARCHAR
(15)
|
|
SBO
loan number
|
VARCHAR
(9)
|
|
Zip
Code
|
VARCHAR
(5)
|
|
Original
loan amount
|
NUMERIC
(12,2)
|
|
Original
value amount
|
NUMERIC
(12,2)
|
|
Origination
date
|
DATE
(MM/DD/YYYY)
|
|
Loan
type
|
VARCHAR
(2)
|
|
Actual
due date
|
DATE
(MM/DD/YYYY)
|
|
Current
loan amount
|
NUMERIC
(12,2)
|
|
Corporate
expense balance
|
NUMERIC
(12,2)
|
|
Escrow
balance/advance balance
|
NUMERIC
(12,2)
|
|
Suspense
balance
|
NUMERIC
(12,2)
|
|
Restricted
escrow balance
|
NUMERIC
(12,2)
|
|
Current
Value date
|
DATE
(MM/DD/YYYY)
|
|
Current
value amount
|
NUMERIC
(12,2)
|
|
Current
value source
|
VARCHAR
(15)
|
|
VA
LGC/ FHA Case number
|
VARCHAR
(15)
|
|
%
of MI coverage
|
NUMERIC
(7,7)
|
|
MI
certificate number
|
VARCHAR
(15)
|
|
LPMI
Cost
|
NUMERIC
(7,7)
|
|
Occupancy
status
|
VARCHAR
(1)
|
|
First
vacancy date
|
DATE
(MM/DD/YYYY)
|
|
Property
condition
|
VARCHAR
(2)
|
|
Property
type
|
VARCHAR
(2)
|
|
Delinquency
flag
|
VARCHAR
(2)
|
|
Reason
for default
|
VARCHAR
(2)
|
|
FNMA
action code
|
VARCHAR
(3)
|
|
FNMA
delinquency reason code
|
VARCHAR
(3)
|
|
Loss
mit flag
|
VARCHAR
(2)
|
|
Loss
mit type
|
VARCHAR
(2)
|
|
Loss
mit approval date
|
DATE
(MM/DD/YYYY)
|
|
Loss
mit removal date
|
DATE
(MM/DD/YYYY)
|
|
Repay
first due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
next due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan broken/reinstated/closed date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan created date
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
flag
|
VARCHAR
(2)
|
|
Foreclosure
attorney referral date
|
DATE
(MM/DD/YYYY)
|
|
Actual
first legal date
|
DATE
(MM/DD/YYYY)
|
|
Date
FC sale scheduled
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
actual sale date
|
DATE
(MM/DD/YYYY)
|
|
Actual
redemption end date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction complete date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
flag
|
VARCHAR
(2)
|
|
Actual
bankruptcy start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
chapter
|
VARCHAR
(2)
|
|
Bankruptcy
Case Number
|
VARCHAR
(15)
|
|
Post
petition due date
|
DATE
(MM/DD/YYYY)
|
|
Actual
discharge date
|
DATE
(MM/DD/YYYY)
|
|
Date
relief/dismissal granted
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim filed date
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim amount filed
|
NUMERIC
(12,2)
|
|
MI
claim amount paid
|
NUMERIC
(12,2)
|
|
MI
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
Title
approval letter received date
|
DATE
(MM/DD/YYYY)
|
|
Title
package HUD/VA date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011A transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part A funds received date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011 B transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part B funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
XXX submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
first funds received amount
|
NUMERIC
(12,2)
|
|
VA
first funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
claims funds received amount
|
NUMERIC
(12,2)
|
|
REO
flag
|
VARCHAR
(2)
|
|
REO
repaired value
|
NUMERIC
(12,2)
|
|
REO
value (as is)
|
NUMERIC
(12,2)
|
|
Field
|
Field
Description
|
|
REO
value date
|
DATE
(MM/DD/YYYY)
|
|
REO
value source
|
VARCHAR
(15)
|
|
REO
original list date
|
DATE
(MM/DD/YYYY)
|
|
REO
original list price
|
NUMERIC
(12,2)
|
|
REO
list price adjustment amount
|
NUMERIC
(12,2)
|
|
REO
list price adjustment date
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer received
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer accepted
|
DATE
(MM/DD/YYYY)
|
|
REO
scheduled close date
|
DATE
(MM/DD/YYYY)
|
|
REO
actual closing date
|
DATE
(MM/DD/YYYY)
|
|
REO
sales price
|
NUMERIC
(12,2)
|
|
REO
net sales proceeds
|
NUMERIC
(12,2)
|
|
Estimated
loss
|
NUMERIC
(12,2)
|
EXHIBIT
L
EMC
FORM
– DELINQUENCY SUMMARY REPORT
Delinquency
Summary Report: Provides summary data at the servicer investor
level regarding loan performance that will be submitted to EMC Master Servicing
and contains the following data fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Performance
type (Current, 30 days, 60 days, 90+ days, Foreclosure, Bankruptcy
or
PIF)
|
VARCHAR
(6)
|
|
Count
of Loans
|
NUMERIC
(10,0)
|
|
Percent
of Investor Number
|
NUMERIC
(7,7)
|
|
Deal
UPB
|
NUMERIC
(14,2)
|
|
Percent
of Deal UPB
|
NUMERIC
(7,7)
|
|
Arrears
Balance
|
NUMERIC
(14,2)
|
|
Percent
of Arrears Balance
|
NUMERIC
(7,7)
|
|
Foreclosure
Quick Sale
|
NUMERIC
(12,2)
|
|
REO
Book Value
|
NUMERIC
(12,2)
|
EXHIBIT
M
EMC
FORM
- CALCULATION OF GAIN-LOSS DELINQUENT LOANS
EMC
Master Servicing Calculation of Gain/Loss on Delinquent Loan
Worksheet
Date: ________________________________
|
Prepared
By
|
Phone
Number
|
Email
Address
|
|
Servicer
Loan Number
|
Servicer
Address
|
EMC
Loan Number
|
|
Borrower
Name
|
Property
Address
|
|
Liquidation
Type
|
REO
|
Third
Party
|
Short
Sale
|
Charge
off
|
Deed
In Lieu
|
|
Has
this loan been previously modified?
|
Yes
|
No
|
|
Has
this loan been crammed down in a bankruptcy?
|
Yes
|
No
|
If
“Yes”,
provide amount _______________________________
|
Liquidation
and Acquisition Expenses:
|
Amounts
requiring Amortization Schedule for backup:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
|
Interest
Accrued at Net Rate Less Servicing Fees
|
|
|
Accrued
Servicing Fees
|
Amounts
requiring Additional backup:
|
Attorney’s
Fees
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Attorney’s
Costs
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Taxes
|
Payment
history showing disbursements
|
|
|
Property
Maintenance
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Property
Inspection
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
PMI/Hazard
Insurance Premiums
|
Payment
history showing disbursements
|
|
|
Utility
Expenses
|
Payment
history showing disbursements
|
|
|
Appraisal/BPO
Expenses
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
XXX
Xxxx
|
Payment
history showing disbursements
|
|
|
Cash
For Keys
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Miscellaneous
(itemized)
|
Requires
Itemization and supporting detail
|
|
|
Total
Expenses
|
------------------------------------------------
|
Credits
to Loan:
|
Escrow
Balance/Advance
|
Payment
history showing disbursements and ending balance
|
|
|
Rental
Receipts
|
Payment
history showing application of funds to loan
|
|
|
Hazard
Claim Proceeds
|
Payment
history showing credit to account
|
|
|
PMI
Funds
|
EOB
document
|
|
|
Government
Insurance Funds (Part A Funds)
|
EOB
document
|
|
|
REO
Proceeds
|
HUD
1 Settlement Statement
|
|
|
Government
Insurance Funds (Part B Funds)
|
EOB
document
|
|
|
Pool
Insurance Proceeds
|
Payment
history showing credit to account
|
|
|
Other
Credits (itemized)
|
Payment
history showing credit to account
|
|
|
Total
Credits
|
------------------------------------------------
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
NOTE: Do
not combine or net remit items. All expenses and credits should be
documented individually. Claim packages are due by the fifth
business day of the month following receipt of liquidation
proceeds. Late claims may result in delayed claim
payment. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
EXHIBIT
N
EMC
FORM
- MODIFIED LOANS REPORT
Modified
Loans Report: Provides loan level data regarding all loans that
the Servicer has modified with the first modified payment due within thirty
days
following the end of the reporting cycle. The report contains the
following data fields in the order below:
|
Field
Description
|
Field
Description
|
|
Loan
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Original
Category
|
VARCHAR
(5)
|
|
Current
Category
|
VARCHAR
(5)
|
|
Stop
Adv Flag
|
VARCHAR
(3)
|
|
Modified
Due Date
|
DATE
(MM/DD/YYYY)
|
|
Mod
Loan Curtailment
|
NUMERIC
(15,2)
|
|
Mod
Loan Xxxx Adjustment
|
NUMERIC
(15,2)
|
|
Principal
Advanced Capped
|
NUMERIC
(15,2)
|
|
Net
Interest Advanced Capped
|
NUMERIC
(15,2)
|
|
Service
Fee Advanced Capped
|
NUMERIC
(15,2)
|
|
Third
Party Bal Capped
|
NUMERIC
(15,2)
|
|
Amount
of Other Capped
|
NUMERIC
(15,2)
|
|
Borrower
Interest Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Fee Code Arrearage Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Principal Contribution
|
NUMERIC
(15,2)
|
|
Amt
Forgiven
|
NUMERIC
(15,2)
|
|
Beg
Delq Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Delq Int Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Int Bal
|
NUMERIC
(15,2)
|
|
Excess
Int Adjust
|
NUMERIC
(15,2)
|
|
Excess
Interest on Mod
|
NUMERIC
(15,2)
|
EXHIBIT
O
EMC
FORM
- CLAIMS SUBMITTED REPORT
Claims
Submitted Report: Provides loan level detail regarding claims
submitted by the servicer’s investor number that will be submitted to EMC Master
Servicing and contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Escrow
Balance or Advance Balance
|
NUMERIC
(12,2)
|
|
Corporate
Expense Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Replacement
Reserve Balance
|
NUMERIC
(12,2)
|
|
Suspense
Balance
|
NUMERIC
(12,2)
|
|
Third
Party Expense Balance
|
NUMERIC
(12,2)
|
|
Charge
Off Amount
|
NUMERIC
(12,2)
|
|
Side
Note Collections
|
NUMERIC
(12,2)
|
|
Claim
Amount Submitted
|
NUMERIC
(12,2)
|
EXHIBIT
P
EMC
FORM
- LOSS SEVERITY SUMMARY REPORT
Loss
Severity Summary Report: Provides summary data at the deal level
regarding loss severity that will be submitted to EMC Master Servicing and
contains the following data fields in the order below:
|
Field
|
Field
Description
|
|
Month
End
|
DATE
(MM/DD/YYYY)
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Loan
Due Date
|
DATE
(MM/DD/YYYY)
|
|
PIF
Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Service
Fee Rate
|
NUMERIC
(7,7)
|
|
P
& I Constant
|
NUMERIC
(12,2)
|
|
Scheduled
Beginning Balance
|
NUMERIC
(12,2)
|
|
Arrearage
Balance
|
NUMERIC
(12,2)
|
|
Total
Legal and Other Expenses
|
NUMERIC
(12,2)
|
|
Scheduled
Advanced Interest
|
NUMERIC
(12,2)
|
|
Scheduled
Liquidated Amount
|
NUMERIC
(12,2)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
P
& I Advance Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Net
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Scheduled
Net Interest
|
NUMERIC
(12,2)
|
|
Net
Liquidated Funds Remitted
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) Amount
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Trust
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Servicer
|
NUMERIC
(12,2)
|
|
Total
Loss Severity %
|
NUMERIC
(7,7)
|
|
Total
Loss Severity % to Trust
|
NUMERIC
(7,7)
|
|
Total
Liquidated Remitted
|
NUMERIC
(12,2)
|
|
Claim
on Trust Loss
|
NUMERIC
(12,2)
|
|
Claim
on Servicer Loss
|
NUMERIC
(12,2)
|
|
Total
Claim Amount
|
NUMERIC
(12,2)
|
