Exhibit 99.8
EXECUTION VERSION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of May 1, 2006, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.,
having an address at World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Assignor"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., having an address at
4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee") and
▇▇▇▇▇ Fargo Bank, N.A. (the "Company").
WHEREAS, Assignor acquired the mortgage loans set forth on Attachment 1
annexed hereto (the "Assigned Loans") from the Company pursuant to that certain
Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series 2005-W81)
(the "Agreement"), dated as of October 1, 2005, by and between Assignor, as
Purchaser, and the Company; and
WHEREAS, the Company agreed to service the Assigned Loans pursuant to the
Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties hereto agree that the Assigned Loans shall be subject to the terms
of this AAR Agreement. Capitalized terms used herein but not defined shall have
the meanings ascribed to them in the Pooling and Servicing Agreement (as defined
below).
Assignment and Assumption
1. Assignor hereby grants, sells, transfers and assigns to Assignee all of
the right, title and interest of Assignor in the Assigned Loans and, as they
relate to the Assigned Loans, all of its right, title and interest in, to and
under the Agreement. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Agreement other than those set forth on Attachment l.
Notwithstanding anything to the contrary contained herein, Assignor is retaining
the right to enforce the representations and warranties made by the Company
prior to the date hereof with respect to the Assigned Loans and the Company.
Representations, Warranties and Covenants
2. Assignor warrants and represents to, and covenants with, Assignee and
the Company that, as of the date hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy of
the Agreement, which agreement is in full force and effect as
of the date hereof and the provisions of which have not been
waived, amended or modified in any respect, nor has any notice
of termination been given thereunder;
b. Assignor was the lawful owner of the Assigned Loans with full
right to transfer the Assigned Loans and any and all of its
interests, rights and obligations under the Agreement as it
relates to the Assigned Loans, free and clear of any and all
liens, claims and encumbrances; and upon the
transfer of the Assigned Loans to Assignee as contemplated
herein, Assignee shall have good title to each and every
Assigned Loan, as well as any and all of Assignor's interests,
rights and obligations under the Agreement as it relates to
the Assigned Loans, free and clear of any and all liens,
claims and encumbrances;
c. Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the
Company with respect to the Assigned Loans or the Agreements;
d. Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modifications of, the
Agreement. Assignor has no knowledge of, and has not received
notice of, any waivers under or any amendments or other
modifications of, or assignment of rights or obligations under
the Agreement;
e. Assignor is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
formation, and has all requisite power and authority to
acquire, own and sell the Assigned Loans;
f. Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement and to
consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in
the ordinary course of Assignor's business and will not
conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor's charter or by-laws or
any legal restriction, or any material agreement or instrument
to which Assignor is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order,
judgment or decree to which Assignor or its property is
subject. The execution, delivery and performance by Assignor
of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by
all necessary action on the part of Assignor. This AAR
Agreement has been duly executed and delivered by Assignor
and, upon the due authorization, execution and delivery by
Assignee and the Company, will constitute the valid and
legally binding obligation of Assignor enforceable against
Assignor in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
g. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental
entity is required to be obtained or made by Assignor in
connection with the execution, delivery or performance by
Assignor of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby. Neither
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Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the
Assigned Loans or any interest in the Assigned Loans, or
solicited any offer to buy or accept transfer, pledge or other
disposition of the Assigned Loans, or any interest in the
Assigned Loans, or otherwise approached or negotiated with
respect to the Assigned Loans, or any interest in the Assigned
Loans, with any Person in any manner, or made any general
solicitation by means of general advertising or in any other
manner, or taken any other action that would constitute a
distribution of the Assigned Loans under the Securities Act of
1933, as amended (the "1993 Act") or that would render the
disposition of the Assigned Loans a violation of Section 5 of
the 1933 Act or require registration pursuant thereto; and
h. Assignor has received from the Company, and has delivered to
Assignee, all documents required to be delivered to Assignor
by the Company prior to the date hereof pursuant to Section
7.01 of the Agreement with respect to the Assigned Loans.
3. Assignee warrants and represents to, and covenants with, Assignor and
Company that as of the date hereof:
a. Assignee is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
formation and has all requisite power and authority to
acquire, own and purchase the Assigned Loans;
b. Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement and to
consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in
the ordinary course of Assignee's business and will not
conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's charter or by-laws or
any legal restriction, or any material agreement or instrument
to which Assignee is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order,
judgment or decree to which Assignee or its property is
subject. The execution, delivery and performance by Assignee
of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by
all necessary action on the part of Assignee. This AAR
Agreement has been duly executed and delivered by Assignee
and, upon the due authorization, execution and delivery by
Assignor and the Company, will constitute the valid and
legally binding obligation of Assignee enforceable against
Assignee in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
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c. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental
entity is required to be obtained or made by Assignee in
connection with the execution, delivery or performance by
Assignee of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
d. There is no action, suit, proceeding, investigation or
litigation pending or, to Assignee's knowledge, threatened,
which either in any instance or in the aggregate, if
determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of,
this AAR Agreement, or Assignee's ability to perform its
obligations under this AAR Agreement;
e. Assignee understands that the Assigned Loans have not been
registered under the Securities Act of 1934 (the "Securities
Act") or the securities laws of any state;
f. Assignee is either (i) not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986 (the "Code")(a "Plan") and not a Person
acting, directly or indirectly, on behalf of or investing with
"plan assets" of any such Plan or (ii) an employee benefit
plan that is subject to ERISA and the assignment contemplated
herein does not constitute and will not result in non-exempt
prohibited transaction under Section 406 of ERISA or Section
4975 of the Code;
g. Assignee assumes all of the rights of the Assignor under the
Agreements with respect to the Assigned Loans including the
right to enforce the representations and warranties of the
Company contained in the Agreements; and
h. A registration statement on Form S-3 (File No. 333-130545),
including the Base Prospectus (the "Registration Statement")
has been filed with the Securities and Exchange Commission
(the "Commission") and has become effective under the
Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been initiated, or to the
Assignee's knowledge, threatened, by the Commission.
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4. The Company warrants and represents to, and covenants with, Assignor
and Assignee that as of the date hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy of
the Agreement, which agreement is in full force and effect as
of the date hereof and the respective provisions of which have
not been waived, amended or modified in any respect, nor has
any notice of termination been given thereunder;
b. The Company is duly organized, validly existing and in good
standing as a national banking association under the laws of
the United States of America and has all requisite power and
authority to service the Assigned Loans;
c. The Company has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement
and to consummate the transactions set forth herein. The
consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of the Company's business
and will not conflict with, or result in a breach of, any of
the terms, conditions or provisions of the Company's charter
or by-laws or any legal restriction, or any material agreement
or instrument to which the Company is now a party or by which
it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or
its property is subject. The execution, delivery and
performance by the Company of this AAR Agreement and the
consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of the Company. This AAR Agreement has been duly
executed and delivered by the Company, and, upon the due
authorization, execution and delivery by Assignor and
Assignee, will constitute the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
d. No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Company in
connection with the execution, delivery or performance by the
Company of this AAR Agreement or the consummation by it of the
transactions contemplated hereby;
e. The Company shall establish a Custodial Account (entitled
"▇▇▇▇▇ Fargo Bank, N.A., as Servicer, in trust for ▇▇▇▇▇ Fargo
Bank, N.A. as Securities Administrator for ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Investors Trust MLMI Series 2006-A3 Mortgage
Pass-Through Certificates") and an Escrow Account
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(entitled "▇▇▇▇▇ Fargo Bank, N.A., as Servicer, in trust for
▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator for
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors Trust MLMI Series 2006-A3
Mortgage Pass-Through Certificates") with respect to the
Assigned Loans, which accounts shall be separate from the
Custodial Account and Escrow Account previously established
under the Agreement in favor of the Assignor; and
f. Each of the representations and warranties made by Company in
Section 3.01 of the Agreement (except Section 3.01(f)) are
true and correct in all material respects as of the date
hereof.
Recognition of Assignee
5. From and after the date hereof, the Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee in
accordance with the Agreement (as modified herein), the terms of which are
incorporated herein by reference. The Company hereby acknowledges that the
Mortgage Loans will be part of a REMIC. In no event will the Company service the
Mortgage Loans in a manner that would (i) cause the REMIC to fail to qualify 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 contributions to a REMIC set forth in
Section 860G(d) of the Code). In addition, Company hereby acknowledges that from
and after the date hereof, the Assigned Loans will be subject to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of May 1,
2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., ▇▇▇▇▇ Fargo Bank,
N.A. (the "Master Servicer" and "Securities Administrator") and HSBC Bank USA,
National Association. Pursuant to the Pooling and Servicing Agreement, the
Master Servicer is required to monitor the Company's performance of its
servicing obligations under the Agreement. Such right will include, without
limitation, the right to terminate the Company under the Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Company under the Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company.
6. In connection therewith, the Company hereby agrees that all remittances
required to be made with respect to the Assigned Loans pursuant to the Agreement
will be made in accordance with the following wire transfer instructions:
Bank: ▇▇▇▇▇ Fargo Bank, N.A.
ABA Routing Number: ▇▇▇-▇▇▇-▇▇▇
Account Name: Corporate Trust Clearing
Account Number: ▇▇▇▇▇▇▇▇▇▇
For Credit to: MLMI Series 2006-A3, Acct# 50918300
and the Company shall deliver all reports required to be delivered under the
Agreement to the Master Servicer at:
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▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - MLMI 2006-A3
It is the intention of Assignor, the Company and Assignee that this AAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither the Company nor Assignor shall amend
or agree to amend, modify, waive or otherwise alter any of the terms or
provisions of the Agreement which amendment, modification, waiver or other
alteration would in any way affect the Assigned Loans without the prior written
consent of Assignee.
Modification of the Agreement
7. Assignor, Assignee and the Company hereby amend the Agreement as
follows:
(a) The Assignor, Assignee and Company hereby amend the definition
of "Remittance Date" in Article I of the Agreement by deleting the words
"immediately following" and replacing them with ""immediately preceding".
(b) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Business Day" in its entirety and
replacing it with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
a day on which the New York Stock Exchange or Federal Reserve is closed or
on which banking and savings and loan institutions in the State of
Maryland, State of Minnesota or State of California are authorized or
obligated by law or executive order to be closed."
(c) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Whole Loan Transfer" in its entirety
and replacing it with the following:
"Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction."
(d) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by adding the following definitions in alphabetical order:
"Assignment and Assumption Agreement: The assignment and assumption
agreement, dated as of May 1, 2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Lending, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. and ▇▇▇▇▇ Fargo Bank,
N.A., as the company."
"Commission: The United States Securities and Exchange Commission."
"Company Information: As defined in Section 6.07A(a)."
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"Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction."
"Exchange Act: The Securities Exchange Act of 1934, as amended."
"Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A."
"Pooling and Servicing Agreement: The pooling and servicing
agreement dated as of May 1, 2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc., the Master Servicer, the Securities Administrator and HSBC
Bank USA, National Association, as trustee."
"Qualified Correspondent: Any Person from which the Company
purchased Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an agreement
between the Company and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the Company, in
accordance with underwriting guidelines designated by the Company
("Designated Guidelines") or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Company within 180
days after origination; (iii) either (x) the Designated Guidelines were, at
the time such Mortgage Loans were originated, used by the Company in
origination of mortgage loans of the same type as the Mortgage Loans for the
Company's own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Company on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Company; and (iv) the Company employed, at the time such Mortgage Loans were
acquired by the Company, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company."
"Reconstitution: Any Securitization Transaction or Whole Loan
Transfer."
"Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be 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."
"Securities Act: The Securities Act of 1933, as amended."
"Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A."
"Securitization Transaction: 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
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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."
"Servicer: As defined in Section 9.01(h)(iii)."
"Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time."
"Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB."
"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 Company or a Subservicer."
"Subservicer: Any Person that services Mortgage Loans on behalf of
the Company 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
Company under this Agreement or any Reconstitution Agreement that are
identified in Item 1122(d) of Regulation AB."
"Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company."
(e) Assignor, Assignee and the Company hereby amend the second
paragraph of Section 4.01 to insert the words "other than Servicing Advances"
following the words "future advances."
(f) Assignor, Assignee and the Company hereby amend Section 4.04 of
the Agreement by replacing the phrase "▇▇▇▇▇ Fargo Bank, N.A., in trust for the
Purchaser and/or subsequent purchasers of Mortgage Loans - P&I." with "▇▇▇▇▇
Fargo Bank, N.A. in trust for ▇▇▇▇▇ Fargo Bank, N.A., as master servicer on
behalf of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors Trust, Series 2006-A3."
(g) Assignor, Assignee and the Company hereby amend Section 4.06 of
the Agreement by replacing the phrase "▇▇▇▇▇ Fargo Bank, N.A., in trust for the
Purchaser and/or subsequent purchasers of the Residential Mortgage Loans, and
various Mortgagors - T&I." with "▇▇▇▇▇ Fargo Bank, N.A. in trust for ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer on behalf of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors
Trust, Series 2006-A3."
(h) Assignor, Assignee and the Company hereby amend Article IV of
the Agreement by adding the following Section 4.26:
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"Section 4.26 Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer
under this Agreement or any Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Section 4.26. The
Company shall not hire or otherwise utilize the services of any
Subcontractor, and shall not permit any Subservicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the
obligations of the Company as servicer under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of paragraph (ii) of this Section 4.26.
(i) It shall not be necessary for the Company to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the
utilization of any Subservicer. The Company shall cause any
Subservicer used by the Company (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the
provisions of this Section 4.26 and with Sections 6.04, 6.06, 6.07,
9.01(h)(iii), 9.01(h)(v), 9.01(h)(vi), 9.01(h)(vii), 9.01(h)(viii)
and 9.01(i) of this Agreement to the same extent as if such
Subservicer were the Company, and to provide the information
required with respect to such Subservicer under Section 9.01(h)(iv)
of this Agreement. The Company shall be responsible for obtaining
from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered
by such Subservicer under Section 6.04, any assessment of compliance
and attestation required to be delivered by such Subservicer under
Section 6.06 and any certification required to be delivered to the
Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be
delivered.
(ii) It shall not be necessary for the Company to seek the consent
of the Purchaser, any Master Servicer or any Depositor to the
utilization of any Subcontractor. The Company shall promptly upon
request provide to the Purchaser, any Master Servicer and any
Depositor (or any designee of the Depositor, such as an
administrator) a written description (in form and substance
satisfactory to the Purchaser, such Depositor and such Master
Servicer) of the role and function of each Subcontractor utilized by
the Company or any Subservicer, specifying (A) the identity of each
such Subcontractor, (B) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB, and (C) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause (B) of this
paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, the Company shall cause any such Subcontractor used
by the Company (or by any Subservicer) for the benefit of the Purchaser
and any Depositor to comply with the provisions of Sections 6.06, 6.07 and
9.01(i) of this Agreement to the same extent as if such Subcontractor were
the Company. The Company shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any
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assessment of compliance and attestation and other certifications required
to be delivered by such Subcontractor under Section 6.06, in each case as
and when required to be delivered."
(i) Assignor, Assignee and the Company hereby amend Section 5.01 of
the Agreement by deleting the second paragraph in its entirety and replacing it
with the following:
"With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Company shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus three (3)
percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the
Custodial Account by the Company on the date such late payment is made and
shall cover the period commencing with the Business Day on which such
payment was due and ending with the Business Day on which such payment is
made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. Payments by
the Company of any such interest shall not be deemed an extension of time
for payment or a waiver of any Event of Default by the Company."
(j) Assignor, Assignee and the Company hereby amend Section 5.02 of
the Agreement by deleting the section in its entirety and replacing it with the
following:
"On or before the tenth calendar day of each month (or if such day is not
a Business Day, the immediately preceding Business Day), the Company shall
furnish to the Purchaser or its designee a delinquency report in the form
set forth in Exhibit J-1, a monthly remittance advice in the form set
forth in Exhibit J-2, and a realized loss report in the form set forth in
Exhibit J-3, each in a mutually agreeable electronic format, as to the
latest Due Period, together with such other information with respect to
the Mortgage Loans as the Purchaser may reasonably require to allocate
distributions made pursuant to this Agreement and to provide appropriate
statements in connection therewith."
(k) Assignor, Assignee and the Company hereby amend the first
sentence of the second paragraph of Section 6.02 by deleting such sentence in
its entirety and replacing it with the following:
"If the Company satisfies or releases the lien of the Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage (other than as a result of a modification of the Mortgage
pursuant to this Agreement or a liquidation of the Mortgaged Property
pursuant to the terms of this Agreement) or should the Company otherwise
prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit
thereof in the Custodial Account within two Business Days of receipt of
such demand by the Purchaser."
(l) Assignor, Assignee and the Company hereby amend Section 6.04 of
the Agreement by deleting such section in its entirety and replacing it with the
following:
11
"On or before March 1st of each calendar year, commencing in 2007, the
Company shall deliver to the Master Servicer a statement of compliance
addressed to the Master Servicer and signed by an authorized officer of
the Company, to the effect that (i) a review of the Company's activities
during the immediately preceding calendar year (or applicable portion
thereof) and of its performance under this Agreement and any applicable
Reconstitution Agreement during such period has been made under such
officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Company has fulfilled all of its obligations
under this Agreement and any applicable Reconstitution Agreement in all
material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any material respect, specifically identifying each such failure known to
such officer and the nature and the status thereof."
(m) Assignor, Assignee and the Company hereby amend the Agreement by
deleting Section 6.05 in its entirety and replacing it with "[Reserved]."
(n) Assignor, Assignee and the Company hereby amend the Agreement by
re-numbering Section 6.06, Right to Examine Company Records, to be "Section
6.08" and Section 6.07, Compliance with REMIC Provisions, to be "Section 6.09."
(o) Assignor, Assignee and the Company hereby amend the Agreement to
add the following new Section 6.06 to the Agreement:
"Section 6.06 Report on Assessment of Compliance and Attestation.
With respect to any Mortgage Loans that are the subject of a
Securitization Transaction, on or before March 1st of each calendar year,
commencing in 2007, the Company shall:
(i) deliver to the Master Servicer a report (in form and substance
reasonably satisfactory to the Master Servicer) regarding the Company's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Master Servicer and signed by an authorized
officer of the Company, and shall address each of the "Applicable
Servicing Criteria" specified on Exhibit I hereto (or those Servicing
Criteria otherwise mutually agreed to by the Purchaser, the Company and
any Person that will be responsible for signing any Sarbanes Certification
with respect to a Securitization Transaction in response to evolving
interpretations of Regulation AB);
(ii) deliver to the Master Servicer a report of a registered public
accounting firm reasonably acceptable to the Master Servicer that attests
to, and reports on, the assessment of compliance made by the Company and
delivered pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 4.26(b) to be "participating in the
servicing function"
12
within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser and any Depositor an assessment of compliance and accountants'
attestation as and when provided in this Section; and
(iv) deliver, and cause each Subservicer and each Subcontractor
described in clause (iii) to deliver, to the Master Servicer and any other
Person that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002)
on behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification, signed by the appropriate officer of the
Company, in the form attached hereto as Exhibit G.
The Company acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Company pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery
of a certification under clause (iv) above unless a Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect
to an issuing entity whose asset pool includes Mortgage Loans.
Each assessment of compliance provided by a Subservicer pursuant to
Section 6.06(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit I hereto delivered to
the Purchaser concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 6.06(iii) need not address any elements
of the Servicing Criteria other than those specified by the Company
pursuant to Section 4.26."
(p) Assignor, Assignee and the Company hereby amend the Agreement by
adding the following new Section 6.07 to the Agreement:
"Section 6.07 Remedies.
(i) Any failure by the Company, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article IX, Section 4.26, Section 6.04 or Section 6.06, or any
breach by the Company of a representation or warranty set forth in Section
9.01(h)(vi)(A) or in a writing furnished pursuant to Section
9.01(h)(vi)(B) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(h)(vi)(B) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this Section,
immediately and automatically, without notice or grace period, constitute
an Event of Default with respect to the Company under this Agreement and
any applicable Reconstitution Agreement, and shall entitle the Purchaser
or any Depositor, as applicable, in its sole discretion to terminate the
rights and obligations of the Company as servicer under this Agreement
and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution
13
Agreement to the contrary) of any compensation to the Company (and if the
Company is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable to any
Master Servicer for such Securitization Transaction); provided that to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights or obligations following termination of the Company as servicer,
such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 6.04 or Section
6.06, including (except as provided below) any failure by the Company to
identify pursuant to Section 4.26(ii) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB,
which continues unremedied for ten (10) calendar days after the date on
which such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with respect
to the Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser, any Master Servicer or any
Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Company as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Company; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Company pursuant to this
subparagraph (ii) if a failure of the Company to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser), any Master Servicer and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an action for damages, specific performance or injunctive relief."
(q) Assignor, Assignee and the Company hereby amend Section 9.01(c)
of the Agreement by deleting such section in its entirety and replacing it with
"Reserved."
(r) Assignor, Assignee and the Company hereby amend Section 9.01(e)
by deleting such section in its entirety and replacing it with the following:
14
"provide any and all information and appropriate verification of
information which may be reasonably available to the Company,
including the Company's underwriting standards, whether through
letters of its auditors and counsel or otherwise, as the Purchaser
shall request; provided that the Purchaser executes an
Indemnification Agreement substantially in the form of Exhibit H
attached hereto;
The Company shall provide such additional representations,
warranties, covenants, opinions of counsel or certificates of
officers of the Company as are reasonably believed necessary by the
trustee, any rating agency or the Purchaser, as the case may be, in
connection with such Agency Sales, Whole Loan Transfers or
Securitization Transactions. The Purchaser shall pay all third-party
costs associated with the preparation of such information. The
Company shall execute any seller/servicer agreements required within
a reasonable period of time after receipt of such seller/servicer
agreements which time shall be sufficient for the Company and
Company's counsel to review such seller/servicer agreements. Under
this Agreement, the Company shall retain a Servicing Fee for each
Mortgage Loan at the Servicing Fee Rate;"
(s) Assignor, Assignee and the Company hereby amend the Agreement to
add the following new Section 9.01(h):
"(h) in connection with any Securitization Transaction the Company
shall (1) within five (5) Business Days following request by
the Purchaser or any Depositor, provide to the Purchaser and
such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in
form and substance reasonably satisfactory to the Purchaser
and such Depositor, the information and materials specified in
paragraphs (i), (ii), (iii) (vii) and (viii) of this Section,
and (2) as promptly as practicable following notice to or
discovery by the Company, provide to the Purchaser and any
Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this Section.
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (1) the
Company, as originator of the Mortgage Loans (including
as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and
(3) as applicable, each Subservicer, as is requested for
the purpose of compliance with Items 1103(a)(1), 1105,
1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination
program and how long the originator has been engaged in
originating residential mortgage loans, which
description shall include a discussion of the
15
originator's experience in originating mortgage loans of
a similar type as the Mortgage Loans; information
regarding the size and composition of the originator's
origination portfolio; and information that may be
material, in the good faith judgment of the Purchaser or
any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such
other information as the Purchaser or any Depositor may
reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated)
against the Company, each Third-Party Originator and
each Subservicer; and
(D) a description of any affiliation or relationship (of
a type described in Item 1119 of Regulation AB) between
the Company, each Third-Party Originator, each
Subservicer and any of the following parties to a
Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any
Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor,
the Company shall provide (or, as applicable,
cause each Third-Party Originator to provide)
Static Pool Information with respect to the
mortgage loans (of a similar type as the Mortgage
Loans, as reasonably identified by the Purchaser
as provided below) originated by (1) the Company,
if the Company is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a
Qualified Correspondent), and/or (2) each
Third-Party Originator. Such Static Pool
Information shall be prepared by the Company (or
Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the
requirements of Item 1105(a)(1)-(3) of Regulation
AB. To the extent that there is reasonably
available to the Company (or Third-Party
Originator) Static Pool Information with respect
to more than one mortgage loan type, the Purchaser
or any Depositor shall be entitled to specify
whether some or all of
16
such information shall be provided pursuant to
this paragraph. The content of such Static Pool
Information may be in the form customarily
provided by the Company, and need not be
customized for the Purchaser or any Depositor.
Such Static Pool Information for each vintage
origination year or prior securitized pool, as
applicable, shall be presented in increments no
less frequently than quarterly over the life of
the mortgage loans included in the vintage
origination year or prior securitized pool. The
most recent periodic increment must be as of a
date no later than 135 days prior to the date of
the prospectus or other offering document in which
the Static Pool Information is to be included or
incorporated by reference. The Static Pool
Information shall be provided in an electronic
format that provides a permanent record of the
information provided, such as a portable document
format (PDF) file, or other such electronic format
reasonably required by the Purchaser or the
Depositor, as applicable.
Promptly following notice or discovery of a
material error in Static Pool Information provided
pursuant to the immediately preceding paragraph
(including an omission to include therein
information required to be provided pursuant to
such paragraph), the Company shall provide
corrected Static Pool Information to the Purchaser
or any Depositor, as applicable, in the same
format in which Static Pool Information was
previously provided to such party by the Company.
If so requested by the Purchaser or any Depositor,
the Company shall provide (or, as applicable,
cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent
of any additional incremental expense associated
with delivery pursuant to this Agreement), such
agreed-upon procedures letters of
certified public accountants reasonably acceptable
to the Purchaser or Depositor, as applicable,
pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed
on or after January 1, 2006 or, in the case of
Static Pool Information with respect to the
Company's or Third-Party Originator's originations
or purchases, to calendar months commencing
January 1, 2006, as the Purchaser or such
Depositor shall reasonably request. Such
letters shall be addressed to and
be for the benefit of such parties as the
Purchaser or such Depositor shall designate, which
may include, by way of example, any Sponsor, any
Depositor and any broker dealer acting as
underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction. Any
such statement or letter may take the form of a
standard, generally applicable document
17
accompanied by a reliance letter authorizing
reliance by the addressees designated by the
Purchaser or such Depositor.
(iii) If so requested by the Purchaser or any Depositor,
the Company shall provide such information
regarding the Company, as servicer of the Mortgage
Loans, and each Subservicer (each of the Company
and each Subservicer, for purposes of this
paragraph, a "Servicer"), as is requested for the
purpose of compliance with Items 1108, 1117 and
1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the Servicer's form of organization;
(B) 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 residential mortgage loans of a
type similar to the Mortgage Loans and
information on factors related to the
Servicer that may be material, in the good
faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing
of the Mortgage Loans or the related
asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of
mortgage loans of a type similar to
the Mortgage Loans involving the
Servicer have defaulted or experienced
an early amortization or other
performance triggering event because
of servicing during the three-year
period immediately preceding the
related Securitization Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
(3) whether there has been previous
disclosure of material noncompliance
with the applicable servicing criteria
with respect to other securitizations
of residential mortgage loans
involving the Servicer as a servicer
during the three-year period
immediately preceding the related
Securitization Transaction;
18
(4) whether the Servicer has been
terminated as servicer in a
residential mortgage loan
securitization, either due to a
servicing default or to application of
a servicing performance test or
trigger; and
(5) such other information as the
Purchaser or any Depositor may
reasonably request for the purpose of
compliance with Item 1108(b)(2) of
Regulation AB;
(C) a description of any material changes during
the three-year period immediately preceding
the related Securitization Transaction to
the Servicer's policies or procedures with
respect to the servicing function it will
perform under this Agreement and any
Reconstitution Agreements for mortgage loans
of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's
financial condition, to the extent that
there is a material risk that an adverse
financial event or circumstance involving
the Servicer could have a material adverse
effect on the performance by the Company of
its servicing obligations under this
Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the
Servicer on the Mortgage Loans and the
Servicer's overall servicing portfolio of
residential mortgage loans for the
three-year period immediately preceding the
related Securitization Transaction, which
may be limited to a statement by an
authorized officer of the Servicer to the
effect that the Servicer has made all
advances required to be made on residential
mortgage loans serviced by it during such
period, or, if such statement would not be
accurate, information regarding the
percentage and type of advances not made as
required, and the reasons for such failure
to advance;
(F) a description of the Servicer's processes
and procedures designed to address any
special or unique factors involved in
servicing loans of a similar type as the
Mortgage Loans;
(G) a description of the Servicer's processes
for handling delinquencies, losses,
bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts;
19
(H) information as to how the Servicer defines
or determines delinquencies and charge-offs,
including the effect of any grace period,
re-aging, restructuring, partial payments
considered current or other practices with
respect to delinquency and loss experience;
(I) a description of any material legal or
governmental proceedings pending (or known
to be contemplated) against the Servicer;
and
(J) a description of any affiliation or
relationship between the Servicer and any of
the following parties to a Securitization
Transaction, as such parties are identified
to the Servicer by the Purchaser or any
Depositor in writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider;
and
(9) any other material transaction party.
(iv) For the purpose of satisfying the reporting
obligation under the Exchange Act with respect to
any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and
Third-Party Originator to) (1) provide prompt
notice to the Purchaser, any Master Servicer and
any Depositor in writing of (A) any material
litigation or governmental proceedings involving
the Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships
that develop following the closing date of a
Securitization Transaction between the Company,
any Subservicer or any Third-Party Originator and
any of the parties specified in Section
9.01(h)(i)(D) (and any other parties identified in
writing by the requesting party) with respect to
such Securitization Transaction, (C) any Event of
Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger,
consolidation or sale of substantially all of the
assets of the Company, and (E) the Company's entry
into an agreement with a Subservicer to perform or
assist in the performance of any of the Company's
obligations under this Agreement or any
Reconstitution Agreement and (2) provide to the
Purchaser and any Depositor a description of such
proceedings, affiliations or relationships.
20
(v) As a condition to the succession to the Company or
any Subservicer as servicer or subservicer under
this Agreement or any Reconstitution Agreement by
any Person (1) into which the Company or such
Subservicer may be merged or consolidated, or (2)
which may be appointed as a successor to the
Company or any Subservicer, the Company shall
provide to the Purchaser, any Master Servicer, and
any Depositor, at least fifteen (15) calendar days
prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser
and any Depositor of such succession or
appointment and (y) in writing and in form and
substance reasonably satisfactory to the Purchaser
and such Depositor, all information reasonably
requested by the Purchaser 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.
(vi) (A) The Company shall be deemed to represent to
the Purchaser, to any Master Servicer and to any
Depositor, as of the date on which information is
first provided to the Purchaser, any Master
Servicer or any Depositor under Section 9.01(d)
that, except as disclosed in writing to the
Purchaser, such Master Servicer or such Depositor
prior to such date: (1) the Company is not aware
and has not received notice that any default,
early amortization or other performance triggering
event has occurred as to any other securitization
due to any act or failure to act of the Company;
(2) the Company has not been terminated as
servicer in a residential mortgage loan
securitization, either due to a servicing default
or to application of a servicing performance test
or trigger; (3) no material noncompliance with the
applicable servicing criteria with respect to
other securitizations of residential mortgage
loans involving the Company as servicer has been
disclosed or reported by the Company; (4) no
material changes to the Company's policies or
procedures with respect to the servicing function
it will perform under this Agreement and any
Reconstitution Agreement for mortgage loans of a
type similar to the Mortgage Loans have occurred
during the three-year period immediately preceding
the related Securitization Transaction; (5) there
are no aspects of the Company's financial
condition that could have a material adverse
effect on the performance by the Company of its
servicing obligations under this Agreement or any
Reconstitution Agreement; (6) there are no
material legal or governmental proceedings pending
(or known to be contemplated) against the Company,
any Subservicer or any Third-Party Originator; and
(7) there are no affiliations, relationships or
transactions relating to the Company, any
Subservicer or any Third-Party Originator with
respect to any Securitization
21
Transaction and any party thereto identified by
the related Depositor of a type described in Item
1119 of Regulation AB.
(B) If so requested by the Purchaser, any Master
Servicer or any Depositor on any date following
the date on which information is first provided to
the Purchaser, any Master Servicer or any
Depositor under Section 9.01(h), the Company
shall, within five (5) Business Days following
such request, confirm in writing the accuracy of
the representations and warranties set forth in
subclause (A) above 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.
(vii) In addition to such information as the Company, as
servicer, is obligated to provide pursuant to
other provisions of this Agreement, not later than
ten (10) days prior to the deadline for the filing
of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes
any of the Mortgage Loans serviced by the Company
or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent
the Company or such Subservicer has knowledge,
provide to the party responsible for filing such
report (including, if applicable, the Master
Servicer) notice of the occurrence of any of the
following events along with all information, data,
and materials related thereto as may be required
to be included in the related distribution report
on Form 10-D (as specified in the provisions of
Regulation AB referenced below):
(A) any material modifications, extensions or
waivers of pool asset terms, fees, penalties or
payments during the distribution period or that
have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(B) material breaches of pool asset
representations or warranties or transaction
covenants (Item 1121(a)(12) of Regulation AB); and
(C) information regarding new asset-backed
securities issuances backed by the same pool
assets, any pool asset changes (such as,
additions, substitutions or repurchases), and any
material changes in origination, underwriting or
other criteria for acquisition or selection of
pool assets (Item 1121(a)(14) of Regulation AB).
(viii) The Company shall provide to the Purchaser, any
Master Servicer and any Depositor, evidence of the
authorization of the person
22
signing any certification or statement, copies or
other evidence of Fidelity Bond Insurance and
Errors and Omission Insurance policy, financial
information and reports, and such other
information related to the Company or any
Subservicer or the Company or such Subservicer's
performance hereunder.
(t) Assignor, Assignee and the Company hereby amend the Agreement to
add the following new Section 9.01(i):
"(i) The Company shall indemnify the Purchaser, each
affiliate of the Purchaser, and each of the following
parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person (including,
but not limited to, any Master Servicer if applicable)
responsible for the preparation, execution or filing of
any report required to be filed with the Commission with
respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d)
or Rule 15d-14(d) under the Exchange Act with respect to
such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial
purchaser, each Person who controls any of such parties
or the Depositor (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act);
and the respective present and former directors,
officers, employees, agents and affiliates of each of
the foregoing and of the Depositor (each, an
"Indemnified Party"), and shall hold each of them
harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain arising out of
or based upon:
(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 in written or electronic form under
Sections 4.26, 6.04, 6.06, 9.01(g) and (h) by or on
behalf of the Company, or provided under Sections 4.26,
6.04, 6.06, 9.01(g) and (h) by or on behalf of any
Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Company Information"), or
(B) the omission or alleged omission to state in the
Company Information a material fact required to be
stated in the Company Information or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely
by reference to the Company Information and not to any
other information communicated in connection with a sale
or purchase of securities, without regard to whether the
Company Information or any portion thereof is presented
together with or separately from such other information;
23
(ii) any breach by the Company of its obligations under this
Article IX, including particularly any failure by the
Company, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information,
report, certification, accountants' letter or other
material when and as required under Sections 4.26, 6.04,
6.06, 9.01(g) and (h), including any failure by the
Company to identify pursuant to Sections 4.26, 6.04,
6.06, 9.01(g) and (h) any Subcontractor "participating
in the servicing function" within the meaning of Item
1122 of Regulation AB;
(iii) any breach by the Company of a representation or
warranty set forth in Section 9.01(h)(vi)(A) or in a
writing furnished pursuant to Section 9.01(h)(vi)(B) and
made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any
breach by the Company of a representation or warranty in
a writing furnished pursuant to Section 9.01(h)(vi)(B)
to the extent made as of a date subsequent to such
closing date; or
(iv) the negligence bad faith or willful misconduct of the
Company in connection with its performance under this
Article IX.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Company agrees that it shall contribute to the amount paid or
payable by such Indemnified Party as a result of any claims,
losses, damages or liabilities incurred by such Indemnified
Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and
the Company on the other.
In the case of any failure of performance described in
sub-clause (ii) of this Section, the Company shall promptly
reimburse the Purchaser, any Depositor, as applicable, and
each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or
Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred
by each such party in order to obtain the information, report,
certification, accountants' letter or other material not
delivered as required by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement."
(u) Assignor, Assignee and the Company hereby amend the Agreement to
add the following new Section 9.01(j):
"(j) the Purchaser and a credit-worthy parent of the Purchaser,
reasonably acceptable to the Company, shall indemnify the Company,
each affiliate of the Company, each Person who controls any of such
parties or the Company (within the
24
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) and the respective present and former directors,
officers, employees and agents of each of the foregoing and of the
Company, and shall hold each of them harmless from and against any
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:
(A) any untrue statement of a material fact contained or alleged
to be contained in any offering materials related to a
Securitization Transaction, including without limitation the
registration statement, prospectus, prospectus supplement, any
private placement memorandum, any free writing prospectuses,
any ABS informational and computational material, and any
amendments or supplements to the foregoing (collectively, the
"Securitization Materials"); or
(B) the omission or alleged omission to state in the
Securitization Materials a material fact required to be stated
in the Securitization Materials or necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading;
but only to the extent that (a) such offering materials included
Company Information and (b) such untrue statement or alleged untrue
statement or omission or alleged omission is other than a statement
or omission arising out of, resulting from, or based upon the
Company Information.
This indemnification shall survive the termination of this Agreement
or the termination of any party to this Agreement."
(v) Assignor, Assignee and the Company hereby amend Article IX to
add the following language prior to the second to last paragraph:
"The Purchaser and the Company acknowledge and agree that the purpose of
Section 9.01(h) of this Agreement is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed
25
securities markets, advice of counsel, or otherwise, and the Company agrees to
comply with requests made by the Purchaser, any Master Servicer or any Depositor
in good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser and any Master
Servicer to deliver to the Purchaser (including any of its assignees or
designees), any Master Servicer and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in the good
faith determination of the Purchaser, the Master Servicer or any Depositor to
permit the Purchaser, such Master Servicer or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Company, any Subservicer, any Third-Party Originator and the Mortgage Loans, or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or any
Depositor to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Company by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB."
(w) Assignor, Assignee and the Company hereby amend Section
10.01(ii) of the Agreement by adding the following language to the beginning of
such section: "except with respect to clause (xi) below,"
(x) Assignor, Assignee and the Company hereby amend the first
Section 10.01(ix) of the Agreement by deleting "or" at the end of the section;
(y) Assignor, Assignee and the Company hereby amend the second
Section 10.01(ix) to be Section 10.01(x) and to replace the "." at the end of
the section with "; or".
(z) Assignor, Assignee and the Company hereby amend Section 10.01 of
the Agreement by adding the following new Section 10.01(xi): "an Event of
Default as set forth in Section 6.07."
(aa) Assignor, Assignee and the Company hereby amend Article XII of
the Agreement by adding the following new Section 12.15:
"Section 12.15. Third Party Beneficiary.
For purposes of this Article XII and any related provisions thereto, any
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement."
(bb) Assignor, Assignee and the Company hereby amend Exhibit G of
the Agreement by deleting such exhibit in its entirety and replacing it with the
following:
26
"EXHIBIT G
FORM OF ANNUAL 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] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
1. 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] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
2. 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;
3. 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] [Securities Administrator] [Trustee];
4. 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
5. The Compliance Statement required to be delivered by the Company pursuant
to the 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.
27
Date: _______________________
By: _______________________
Name:
Title:
(cc) Assignor, Assignee and the Company hereby amend the Agreement by
adding the following Exhibit I to the Agreement:
"EXHIBIT I
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements. X
X
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
1122(d)(1)(ii) activities.
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
X
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
1122(d)(1)(iv) agreements.
CASH COLLECTION AND ADMINISTRATION
X
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
1122(d)(2)(i) number of days specified in the transaction agreements.
X
Disbursements made via wire transfer on behalf of an obligor or
1122(d)(2)(ii) to an investor are made only by authorized personnel.
X
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
1122(d)(2)(iii) in the transaction agreements.
X
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
1122(d)(2)(iv) overcollateralization, are separately
28
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------
maintained (e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
X
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
1122(d)(2)(v) Act.
X
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
X
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
1122(d)(2)(vii) transaction agreements.
INVESTOR REMITTANCES AND REPORTING
X
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
1122(d)(3)(i) mortgage loans serviced by the Servicer.
X
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements.
X
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such other
1122(d)(3)(iii) number of days specified in the transaction agreements.
X
Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
1122(d)(3)(iv) bank statements.
POOL ASSET ADMINISTRATION
X
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan
1122(d)(4)(i) documents.
X
Mortgage loan and related documents are safeguarded as required
1122(d)(4)(ii) by the transaction agreements.
X
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions
1122(d)(4)(iii) or requirements in the transaction agreements.
X
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with
29
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------
the related mortgage loan documents are posted to the
Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in
the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
X
The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
X
Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
1122(d)(4)(vi) asset documents.
X
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
1122(d)(4)(vii) requirements established by the transaction agreements.
X
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
1122(d)(4)(viii) unemployment).
X
Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
1122(d)(4)(ix) mortgage loan documents.
X
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents
and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified in the
1122(d)(4)(x) transaction agreements.
X
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
1122(d)(4)(xi) transaction agreements.
X
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
1122(d)(4)(xii) to the obligor's error or omission.
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
1122(d)(4)(xiii) transaction agreements. X
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements. X
30
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
----------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------
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.
1122(d)(4)(xv)
(dd) Assignor, Assignee and the Company hereby amend the
Agreement to add the following Exhibit J-1, Exhibit J-2 and Exhibit J-3 to the
Agreement:
"EXHIBIT J-1
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------ ----------- ------- --------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by
the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment MM/DD/YYYY
MM/DD/YYYY is due to the servicer at the end
of processing cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was
filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A
Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
MM/DD/YYYY servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
31
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,)
foreclosure sale. or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY MM/DD/YYYY
possession of the property from the borrower.
LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or
appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower
to stop paying on a loan. Code indicates
the reason why the loan is in default for
this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,)
Claim or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
32
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: ▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply ▇▇▇▇▇
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
33
STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
34
STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
EXHIBIT J-2
STANDARD FILE LAYOUT - MASTER SERVICING
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ----------- ------- --------------- --------
SER_INVESTOR_NBR A value assigned by the Text up to 10 digits 20
Servicer to define a group of
loans.
LOAN_NBR A unique identifier assigned Text up to 10 digits 10
to each loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a Text up to 10 digits 10
loan by the Servicer. This
may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received Maximum length of 30 30
in the file. It is not (Last, First)
separated by first and last
name.
SCHED_PAY_AMT Scheduled monthly principal 2 No commas(,) or dollar 11
and scheduled interest signs ($)
payment that a borrower is
expected to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
NET_INT_RATE The loan gross interest rate 4 Max length of 6 6
less the service fee rate as
reported by the Servicer.
35
SERV_FEE_RATE The servicer's fee rate for a 4 Max length of 6 6
loan as reported by the
Servicer.
SERV_FEE_AMT The servicer's fee amount for 2 No commas(,) or dollar 11
a loan as reported by the signs ($)
Servicer.
NEW_PAY_AMT The new loan payment amount 2 No commas(,) or dollar 11
as reported by the Servicer. signs ($)
NEW_LOAN_RATE The new loan rate as reported 4 Max length of 6 6
by the Servicer.
ARM_INDEX_RATE The index the Servicer is 4 Max length of 6 6
using to calculate a
forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual 2 No commas(,) or dollar 11
principal balance at the signs ($)
beginning of the processing
cycle.
ACTL_END_PRIN_BAL The borrower's actual 2 No commas(,) or dollar 11
principal balance at the end signs ($)
of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is
due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
SERV_CURT_DATE_1 The curtailment date MM/DD/YYYY 10
associated with the first
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on 2 No commas(,) or dollar 11
the first curtailment amount, signs ($)
if applicable.
SERV_CURT_AMT_2 The second curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
SERV_CURT_DATE_2 The curtailment date MM/DD/YYYY 10
associated with the second
curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on 2 No commas(,) or dollar 11
the second curtailment signs ($)
amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
SERV_CURT_DATE_3 The curtailment date MM/DD/YYYY 10
associated with the third
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on 2 No commas(,) or dollar 11
the third curtailment amount, signs ($)
if applicable.
PIF_AMT The loan "paid in full" 2 No commas(,) or dollar 11
amount as reported by the signs ($)
Servicer.
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
ACTION_CODE The standard FNMA numeric code Action Code Key: 2
used to indicate the default/ 15=Bankruptcy,
delinquent status of a 30=Foreclosure, , 60=PIF,
particular loan. 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar 11
adjustment as reported by the signs ($)
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor 2 No commas(,) or dollar 11
Adjustment amount, if signs ($)
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or dollar 11
Amount, if applicable. signs ($)
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar 11
passing as a loss, if signs ($)
applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar 11
principal amount due at the signs ($)
beginning of the cycle date
to be passed through to
investors.
SCHED_END_PRIN_BAL The scheduled principal 2 No commas(,) or dollar 11
balance due to investors at signs ($)
the end of a processing cycle.
36
SCHED_PRIN_AMT The scheduled principal 2 No commas(,) or dollar 11
amount as reported by the signs ($)
Servicer for the current
cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current cycle
as reported by the Servicer
-- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar 11
collected by the Servicer for signs ($)
the current reporting cycle
-- only applicable for
Actual/Actual Loans.
ACTL_NET_INT The actual gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current
reporting cycle as reported
by the Servicer -- only
applicable for Actual/Actual
Loans.
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or dollar 11
when a borrower prepays on signs ($)
his loan as reported by the
Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount 2 No commas(,) or dollar 11
for the loan waived by the signs ($)
servicer.
MOD_DATE The Effective Payment Date of MM/DD/YYYY 10
the Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or dollar 11
principal and interest signs ($)
advances made by Servicer.
EXHIBIT J-3
CALCULATION OF REALIZED LOSS/GAIN FORM 332 - INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND
ALL CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE
REMITTANCE REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING
PASSED UNTIL THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO REMIT
ALL FUNDS PENDING LOSS APPROVAL AND /OR RESOLUTION OF ANY DISPUTED
ITEMS.
The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
37
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover
advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance
forward)
* Other expenses - copies of corporate advance history showing
all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision
and WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
38
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: __________________ Date: _____________
Phone: ______________________ Email Address:_____________________
Servicer Loan No. Servicer Name Servicer Address
▇▇▇▇▇ FARGO BANK, N.A. LOAN NO._____________________________
Borrower's Name: ___________________________
Property Address: ___________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount _____________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys__________________________ ________________(12)
HOA/Condo Fees_______________________ ________________(12)
____________________________ ________________ (12)
TOTAL EXPENSES $ _______________(13)
CREDITS:
(14) Escrow Balance $ _______________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a)
HUD Part A
HUD Part B ________________ (18b)
39
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
____________________________________________ ________________ (21)
TOTAL CREDITS $________________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $________________(23)
40
ESCROW DISBURSEMENT DETAIL
TYPE DATE PAID PERIOD OF TOTAL PAID BASE AMOUNT PENALTIES INTEREST
(TAX /INS.) COVERAGE
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
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Miscellaneous
8. All demands, notices and communications related to the Assigned
Loans, the Agreement and this AAR Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or mailed by registered
mail, postage prepaid, as follows:
a. In the case of the Company,
▇▇▇▇▇ Fargo Bank, N.A.
1 Home ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, MAC X2401-042
Fax: 515/▇▇▇-▇▇▇▇
41
with a copy to:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel MAC X2401-06T
b. In the case of Assignor,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MLMI 2006-A3
c. In the case of Assignee,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MLMI 2006-A3
d. In the case of Master Servicer,
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - MLMI 2006-A3
9. This AAR Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
11. This AAR Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which Assignor, Assignee or the
Company may be merged or consolidated shall without the requirement for any
further writing, be deemed Assignor, Assignee or the Company, respectively
hereunder.
42
12. This AAR Agreement shall survive the conveyance of the Assigned
Loans as contemplated in this AAR Agreement.
13. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
14. In the event that any provision of this AAR Agreement conflicts
with any provision of the Agreement with respect to the Assigned Loans, the
terms of this AAR Agreement shall control.
15. Each party will pay any commissions it has incurred and the
Assignor shall pay the fees of its attorneys and reimburse the Company for all
out-of-pocket expenses, including attorney's fees, incurred by the Company in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
16. For purposes of this AAR Agreement only, the Master Servicer shall
be considered a third party beneficiary, entitled to all the rights and benefits
accruing to any Master Servicer as set forth herein as if it were a direct party
to this AAR Agreement.
43
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING, INC.
Assignor
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
Assignee
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
Company
By:
-----------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
Master Servicer
By:
-----------------------------------------
Name:
Title:
ATTACHMENT l
ASSIGNED LOAN SCHEDULE
(Provided Upon Request)
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT,
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
(Provided Upon Request)