Exhibit 99.3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of June 27, 2007, among Taberna Realty Holdings Trust,
having an office at Xxxx Center, 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (the "Assignor"), and Xxxxxxx Xxxxx Mortgage Investors, Inc.,
having an office at 000 Xxxxx Xxxxxx, 4 World Financial Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Assignee"), and Xxxxx Fargo Bank, N.A., having an
xxxxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000 (the "Company"):
WHEREAS, Assignor acquired a mortgage loan listed on Attachment 1
annexed hereto that has been serviced pursuant to a certain Seller's Warranties
and Servicing Agreement (WFHM 2005-W82) (the "2005 Underlying Agreement"), dated
as of October 1, 2005, between Citigroup Global Markets Realty Corp. and the
Company, and, for the purposes of this AAR Agreement, such mortgage loan will be
included in the definition of Assigned Loans (as defined below) and will be,
upon execution of this AAR Agreement, serviced pursuant to the Underlying
Agreement (as defined below) as modified by this AAR Agreement;
WHEREAS Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") 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 2006-W60) (the "Underlying Agreement"),
dated as of July 1, 2006, by and between MLML, as purchaser, and the Company;
WHEREAS MLML assigned all of its right, title and interest in, to and
under the Underlying Agreement with respect to the Assigned Loans to the
Assignor pursuant to that certain Assignment, Assumption and Recognition
Agreement, dated as of August 8, 2006, between MLML and the Assignor and
acknowledged by the Company (the "2006 AAR Agreement" and, together with the
Underlying Agreement, the "Agreements");
WHEREAS the Assignor wishes to assign to Assignee all of its right,
title and interest with respect to the Assigned Loans and all of its right,
title and interest under the Agreements, with respect to the Assigned Loans, and
Assignee wishes to assume all of Assignor's right, title and interest in and to
such Assigned Loans;
WHEREAS the Assignor will sell and the Assignee will purchase all of
the Assignor's right, title and interest with respect to the Assigned Loans
pursuant to the Mortgage Loan Purchase Agreement, dated June 27, 2007, between
the Assignor and the Assignee, and the Assignee will in turn transfer its right,
title and interest with respect to the Assigned Loans to Xxxxxxx Xxxxx Mortgage
Backed Securities Trust, Series 0000-0 (xxx "Xxxxxxx Xxxxxx") pursuant to the
Sale and Servicing Agreement (the "Sale and Servicing Agreement"), dated as of
June 1, 2007, by and among the Assignor, as seller, the Assignee, as depositor,
the Issuing Entity, Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and securities administrator, and HSBC Bank
USA, National Association, as indenture trustee; and
WHEREAS the Company hereby agrees to service the Assigned Loans in
accordance with the servicing provisions contained in the Underlying Agreement,
as amended by this AAR Agreement and, upon the transfer of the Assigned Loans
pursuant to the Sale and Servicing Agreement, to acknowledge the Issuing Entity
as the owner of the Assigned Loans with the authority to enforce the Underlying
Agreement, as amended by this AAR 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 Sale and Servicing Agreement.
1. Assignment and Assumption.
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 Agreements. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Underlying Agreement or the 2006 AAR 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.
2. Representations, Warranties and Covenants of Assignor.
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 Underlying Agreement, and attached hereto as Attachment 3 is
a true and accurate copy of the 2006 AAR Agreement, which
agreements are 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 (other than the modifications of the
Underlying Agreement contained in the 2006 AAR Agreement), 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 Agreements as they
relate 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
Agreements as they relate to the Assigned Loans, free and clear
of any and all liens, claims and encumbrances;
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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 Agreements (other
than the modifications of the Underlying Agreement contained in
the 2006 AAR 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 Agreements;
e. Assignor is 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 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,
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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 "1933 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;
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 Underlying Agreement with respect to the Assigned Loans; and
i. Assignor hereby affirms, as of the date hereof, each of the
Representations and Warranties Regarding Individual Mortgage
Loans contained in Section 3.02 of the Underlying Agreement (or,
in the case of the loan previously serviced pursuant to the 2005
Underlying Agreement, Section 3.02 of the 2005 Underlying
Agreement) insofar as they relate to the Assigned Loans as if
such representations and warranties were set out in full herein
3. Representations, Warranties and Covenants of Assignee.
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
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by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
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. 333-140436),
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.
4. Representations, Warranties and Covenants of the Company.
The Company warrants and represents to, and covenants with, Assignor
and Assignee that as of the date hereof:
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a. Attached hereto as Attachment 2 is a true and accurate copy of
the Underlying Agreement, and attached hereto as Attachment 3 is
a true and accurate copy of the 2006 AAR Agreement, which
agreements are 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 (other than the modifications of the
Underlying Agreement contained in the 2006 AAR Agreement), 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 "Xxxxx
Fargo Bank, N.A., as Servicer, in trust for Xxxxx Fargo Bank,
N.A. as Securities Administrator for Xxxxxxx Xxxxx Mortgage
Backed Securities Trust, Series 2007-2 Mortgage Loan Asset-Backed
Notes") and an Escrow Account (entitled "Xxxxx Fargo Bank, N.A.,
as Servicer, in trust for Xxxxx Fargo Bank, N.A., as Securities
Administrator
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for Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2
Mortgage Loan Asset-Backed Notes") 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.
5. Recognition of Assignee.
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 Underlying Agreement (as modified herein), the terms of
which are incorporated herein by reference. The Company hereby acknowledges that
from and after the date hereof, the Assigned Loans will be subject to the Sale
and Servicing Agreement. Pursuant to the Sale and Servicing Agreement, the
Master Servicer is required to monitor the Company's performance of its
servicing obligations under the Underlying Agreement (as modified herein). Such
right will include, without limitation, the right to terminate the Company under
the Underlying 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 Underlying Agreement, the right to receive all monthly reports and other
data required to be delivered by the Company under the Underlying 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.
In connection therewith, the Company hereby agrees that all
remittances required to be made with respect to the Assigned Loans pursuant to
the Underlying Agreement will be made in accordance with the following wire
transfer instructions:
Bank: Xxxxx Fargo Bank, N.A.
ABA Routing Number: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For Credit to: XXXXX 0000-0, Xxxx# 50995600
and the Company shall deliver all reports required to be delivered under the
Underlying Agreement to the Master Servicer at:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MLMBS 2007-2
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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.
6. Modifications of the Underlying Agreement.
Assignor, Assignee and the Company hereby amend the Underlying
Agreement as follows:
(a) The Assignor, Assignee and Company hereby amend the definition of
"Remittance Date" in Article I of the Underlying 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
Underlying 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 City of New York are authorized or obligated by law
or executive order to be closed."
(c) The Assignor, Assignee and Company hereby amend Article I of the
Underlying 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
Underlying Agreement by deleting the definition of "Commission" in its entirety
and replacing it with the following:
"Commission: The United States Securities and Exchange Commission."
(e) The Assignor, Assignee and Company hereby amend Article I of the
Underlying Agreement by deleting the definition of "Company Information" in its
entirety and replacing it with the following:
"Company Information: As defined in Section 9.01(f)(i)(A)."
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(f) The Assignor, Assignee and Company hereby amend Article I of the
Underlying Agreement by deleting the definition of "Master Servicer" in its
entirety and replacing it with the following:
"Master Servicer: Xxxxx Fargo Bank, N.A."
(g) The Assignor, Assignee and Company hereby amend Article I of the
Underlying Agreement by deleting the definition of "Reconstitution" in its
entirety and replacing it with the following:
"Reconstitution: Any Securitization Transaction or Whole Loan
Transfer."
(h) The Assignor, Assignee and Company hereby amend Article I of the
Underlying Agreement by deleting the definition of "Servicer" in its entirety
and replacing it with the following:
"Servicer: As defined in Section 9.01(h)(iii)."
(i) The Assignor, Assignee and Company hereby amend Article I of the
Underlying Agreement by adding the following definitions in alphabetical order:
"Sale and Servicing Agreement: The sale and servicing agreement dated
as of June 1, 2007, by and among Taberna Realty Holdings Trust, Xxxxxxx
Xxxxx Mortgage Backed Securities Trust, Series 2007-2, Xxxxxxx Xxxxx
Mortgage Investors, Inc., the Master Servicer, the Securities Administrator
and HSBC Bank USA, National Association."
"Securities Administrator: Xxxxx Fargo Bank, N.A."
(j) The Assignor, Assignee and Company hereby amend Section 4.01 of
the Underlying Agreement by deleting the second sentence of the second paragraph
and replacing it with the following:
"Notwithstanding the foregoing, in the event that any Mortgage Loan is
in default or, in the judgment of the Company, such default is reasonably
foreseeable, the Company, consistent with Accepted Servicing Practices may
waive, modify or vary any term of such Mortgage Loan (including, but not
limited to, modifications that change the Mortgage Interest Rate, forgive
the payment of principal or interest or extend the final maturity date of
such Mortgage Loan, accept payment from the related Mortgagor of an amount
less than the scheduled principal balance in final satisfaction of such
Mortgage Loan, or consent to the postponement of strict compliance with any
such term or otherwise grant indulgence to any Mortgagor if in the
Company's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the Purchaser."
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(k) The Assignor, Assignee and Company hereby amend Section 4.02 of
the Underlying Agreement by deleting the second and third sentences of the first
paragraph and replacing them with the following:
"In the event that any payment due under any Mortgage Loan is not
postponed pursuant to Section 4.01 and remains delinquent for a period of
ninety (90) days or any other default continues for a period of ninety (90)
days beyond the expiration of any grace or cure period, Taberna Realty
Holdings Trust (or, upon notice to the Company, any successor holder of a
majority interest in the owner trust certificates issued by the Xxxxxxx
Xxxxx Mortgage Backed Securities Trust, Series 2007-2) shall have the right
to instruct the Company to commence such foreclosure proceedings, provided
that, regardless of whether or not such instruction has been given, the
Company shall commence such foreclosure proceedings unless Taberna Realty
Holdings Trust (or, upon notice to the Company, any successor holder of a
majority interest in the owner trust certificates issued by the Xxxxxxx
Xxxxx Mortgage Backed Securities Trust, Series 2007-2) objects to such
foreclosure action no later than the third Business Day prior to the
expiration of such ninety (90) day period. In the event that Taberna Realty
Holdings Trust (or such successor) objects to such foreclosure action, the
Company shall not commence any foreclosure action and shall not be required
to make Monthly Advances with respect to such Mortgage Loan, pursuant to
Section 5.03, and the Company's obligation to make such Monthly Advances
shall terminate on the 90th day referred to above."
(l) The Assignor, Assignee and Company hereby amend Section 4.10 of
the Underlying Agreement by deleting the fourth paragraph in its entirety and
replacing it with the following:
"In the event that any Purchaser or the Company shall determine that
the Mortgaged Property should be insured against loss or damage by hazards
and risks not covered by the insurance required to be maintained by the
Mortgagor pursuant to the terms of the Mortgage, the Company shall
communicate and consult with the Mortgagor with respect to the need for
such insurance and bring to the Mortgagor's attention the desirability of
protection of the Mortgaged Property."
(m) The Assignor, Assignee and the Company hereby amend Section 4.13
of the Underlying Agreement by deleting it in its entirety and replacing it with
the following:
"If any Mortgage Loan is more than 60 days delinquent and the Servicer
has not had contact with the Mortgagor, the Company immediately shall
inspect the Mortgaged Property and shall conduct subsequent inspections in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer. The Company shall keep a written report
of each such inspection."
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(n) The Assignor, Assignee and the Company hereby amend Section 5.01
of the Underlying 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."
(o) Assignor, Assignee and the Company hereby amend Section 5.02 of
the Underlying 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 and to Taberna Realty
Holdings Trust (or, upon notice to the Company, any successor holder of a
majority interest in the owner trust certificates issued by the Xxxxxxx
Xxxxx Mortgage Backed Securities Trust, Series 2007-2) a delinquency report
in the form set forth in Exhibit J-1 and to the Purchaser or its designee 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."
(p) Assignor, Assignee and the Company hereby amend Section 6.04 of
the Underlying Agreement by deleting such section in its entirety and replacing
it with the following:
"On or before March 1st of each calendar year, commencing in 2008, 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
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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."
(q) Assignor, Assignee and the Company hereby amend the Underlying
Agreement by deleting Section 6.05 in its entirety and replacing it with
"[Reserved]."
(r) Assignor, Assignee and the Company hereby amend the Underlying
Agreement by deleting Section 6.06 in its entirety and replacing it with the
following:
"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 2008, 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" 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 Xxxxxxxx-Xxxxx Act of 2002) on
behalf of an asset-backed issuer with respect to a Securitization
Transaction a
12
certification, signed by the appropriate officer of the Company, in the
form attached hereto as Exhibit H.
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."
(s) Assignor, Assignee and the Company hereby amend the Underlying
Agreement by deleting Section 9.01(e)(iv) in its entirety and replacing it with
the following:
"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) promptly notify 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(e)(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."
(t) Assignor, Assignee and the Company hereby amend the Underlying
Agreement by deleting Sections 9.01(f) (i), (ii), (iii) and (iv) and replacing
them with the following:
"(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, data,
accountants' letter or other material provided in written or
electronic form under Sections
13
4.26, 6.04, 6.06, 9.01(e) and (f) by or on behalf of the Company,
or provided under Sections 4.26, 6.04, 6.06, 9.01(e) and (f) by
or on behalf of any Subservicer, Subcontractor or Third-Party
Originator (collectively, the "Company Information"), or (B) the
omission or alleged omission to state in the Company Information
a material fact required to be stated in the Company Information
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of
this paragraph shall be construed solely by reference to the
Company Information and not to any other information communicated
in connection with a sale or purchase of securities, without
regard to whether the Company Information or any portion thereof
is presented together with or separately from such other
information;
(ii) any breach by the Company of its obligations under Sections 4.26,
6.04, 6.06 and 9.01(e), 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 and 9.01(e), including any failure by
the Company to identify any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation
AB; or
(iii) any breach by the Company of a representation or warranty set
forth in Section 9.01(e)(vi)(A) or in a writing furnished
pursuant to Section 9.01(e)(vi)(B) and made as of a date prior to
the closing date of the related Securitization Transaction, to
the extent that such breach is not cured by such closing date, or
any breach by the Company of a representation or warranty in a
writing furnished pursuant to Section 9.01(e)(vi)(B) to the
extent made as of a date subsequent to such closing date; or
(iv) the negligence, bad faith or willful misconduct of the Company in
connection with its performance under Sections 4.26, 6.04, 6.06
and 9.01(e)."
(u) Assignor, Assignee and the Company hereby amend the Underlying
Agreement by deleting Section 9.01(g), third paragraph, in its entirety and
replacing it with the following:
"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
14
Company acknowledges that interpretations of the requirements of Regulation
AB may change over time, whether due to interpretive guidance provided by
the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser, 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."
(v) Assignor, Assignee and the Company hereby amend Section 10.01(ii)
of the Underlying Agreement by adding the following language to the beginning of
such section: "except with respect to clause (x) below,"
(w) Assignor, Assignee and the Company hereby amend Article XII of the
Underlying 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."
(x) 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.
15
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due MM/DD/YYYY
to the 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 filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either MM/DD/YYYY
by Dismissal, Discharged and/or a Motion For Relief
Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such
As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure
proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to MM/DD/YYYY
occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or
sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession of MM/DD/YYYY
the property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the MM/DD/YYYY
Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled to MM/DD/YYYY
close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
16
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or
appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan. Code
indicates the reason why the loan is in
default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
EXHIBIT 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
17
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- 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
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
18
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
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 Servicer to Text up to 10 digits 20
define a group of loans.
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan
19
by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan Text up to 10 digits 10
by the Servicer. This may be
different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the Maximum length of 30 (Last, First) 30
file. It is not separated by first
and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs ($) 11
scheduled interest payment that a
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported 4 Max length of 6 6
by the Servicer.
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported by
the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan 4 Max length of 6 6
as reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan 2 No commas(,) or dollar signs ($) 11
as reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the beginning of the
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the end of the processing
cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_1 The curtailment date associated with MM/DD/YYYY 10
the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
first curtailment amount, if
applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with MM/DD/YYYY 10
the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
second curtailment amount, if
applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
third curtailment amount, if
applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported by MM/DD/YYYY 10
the Servicer.
20
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 15=Bankruptcy, 2
indicate the default/delinquent status of a 30=Foreclosure, , 60=PIF,
particular loan. 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar signs ($) 11
adjustment as reported by the
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or dollar signs ($) 11
as a loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the
cycle date to be passed through to
investors.
SCHED_END_PRIN_BAL The scheduled principal balance due 2 No commas(,) or dollar signs ($) 11
to investors at the end of a
processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the
current cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the current
cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar signs ($) 11
collected by the Servicer for the current
reporting cycle -- only applicable for
Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the current
reporting cycle as reported by the Servicer
-- only applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs ($) 11
the loan waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs ($) 11
and interest 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
21
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.
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 Servicing Officer certification
* 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.
22
* 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 (_____).
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ________________________ Date: __________________________________
Phone: ______________________________ Email Address: _________________________
Servicer Loan No. Servicer Name Servicer Address
_________________________ _________________________ ________________________
XXXXX FARGO BANK, N.A. LOAN NO. _____________________
Borrower's Name:
_____________________________________________________
Property Address:
_____________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE
CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES [ ] NO [ ]
If "Yes", provide deficiency or 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)
23
(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 _______________
(18b) HUD Part B _______________
(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)
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF TOTAL BASE
(TAX /INS.) DATE PAID COVERAGE PAID AMOUNT PENALTIES INTEREST
----------- --------- --------- --------- --------- --------- ---------
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
24
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
___________ _________ _________ _________ _________ _________ _________
7. Notices.
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,
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2302-033
Fax: 515/000-0000
with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel MAC X2401-06T
b. In the case of Assignor,
Taberna Realty Holdings Trust
25
Xxxx Center
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
c. In the case of Assignee,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMBS 2007-2
d. In the case of Master Servicer,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MLMBS 2007-2
Miscellaneous Provisions.
8. 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.
9. 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.
10. 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.
11. This AAR Agreement shall survive the conveyance of the Assigned Loans
as contemplated in this AAR Agreement.
12. 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.
13. 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.
26
14. 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.
15. 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.
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IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition to be executed by their duly authorized officers as of the date
first above written.
TABERNA REALTY HOLDINGS TRUST
Assignor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
Assignee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXX FARGO BANK, N.A.
Company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Acknowledged and agreed to by:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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ATTACHMENT 1
ASSIGNED LOAN SCHEDULE
[Intentionally Omitted]
29
ATTACHMENT 2
UNDERLYING AGREEMENT
See Exhibit 99.4
XXXXXXXXXX 0
0000 XXX AGREEMENT
[Intentionally Omitted]
2
