TAYLOR, BEAN & WHITAKER MORTGAGE CORP., as Servicer and DLJ MORTGAGE CAPITAL, INC., as Seller WELLS FARGO BANK, N.A., as Master Servicer and as Trust Administrator and U.S. BANK NATIONAL ASSOCIATION, as Trustee TBW Mortgage- Backed Trust Series 2007-2...
XXXXXX,
XXXX & XXXXXXXX MORTGAGE CORP.,
as
Servicer
and
DLJ
MORTGAGE CAPITAL, INC.,
as
Seller
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer and as Trust Administrator
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
_____________________________
TBW
Mortgage-Backed Pass-Through Certificates, Series 2007-2
Dated
as
of May 1, 2007
_____________________________
TABLE
OF CONTENTS
Page
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ARTICLE
I.
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DEFINITIONS
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ARTICLE
II.
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SELLER’S
ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
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Section
2.01.
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Contract
for Servicing; Possession of Servicing Files.
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11
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Section
2.02.
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Books
and Records.
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12
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ARTICLE
III.
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SERVICING
OF THE MORTGAGE LOANS
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Section
3.01.
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Servicer
to Service.
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12
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Section
3.02.
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Collection
of Mortgage Loan Payments.
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14
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Section
3.03.
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Realization
Upon Defaulted Mortgage Loans.
|
15
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Section
3.04.
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Establishment
of and Deposits to Custodial Account.
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15
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Section
3.05.
|
Permitted
Withdrawals From Custodial Account.
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17
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Section
3.06.
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Establishment
of and Deposits to Escrow Account.
|
18
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Section
3.07.
|
Permitted
Withdrawals From Escrow Account.
|
19
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Section
3.08.
|
Notification
of Adjustments.
|
20
|
|
Section
3.09.
|
[Reserved.]
|
20
|
|
Section
3.10.
|
Payment
of Taxes, Insurance and Other Charges.
|
20
|
|
Section
3.11.
|
Protection
of Accounts.
|
21
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Section
3.12.
|
Maintenance
of Hazard Insurance.
|
21
|
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Section
3.13.
|
Maintenance
of Mortgage Impairment Insurance.
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23
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Section
3.14.
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
23
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Section
3.15.
|
Maintenance
of PMI and/or LPMI Policy; Claims.
|
24
|
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Section
3.16.
|
Title,
Management and Disposition of REO Property.
|
25
|
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Section
3.17.
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Real
Estate Owned Reports.
|
27
|
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Section
3.18.
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Liquidation
Reports.
|
28
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Section
3.19.
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
28
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Section
3.20.
|
Prepayment
Penalties.
|
28
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Section
3.21.
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Confidentiality/Protecting
Customer Information.
|
28
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Section
3.22.
|
Credit
Reporting.
|
29
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Section
3.23.
|
Notification
of Maturity Date.
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29
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-i-
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ARTICLE
IV.
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PAYMENTS
TO MASTER SERVICER
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Section
4.01.
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Remittances.
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29
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Section
4.02.
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Statements
to Master Servicer.
|
30
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Section
4.03.
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Monthly
Advances by Servicer.
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31
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Section
4.04.
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Due
Dates Other Than the First of the Month.
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32
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ARTICLE
V.
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SERVICING
PROCEDURES
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Section
5.01.
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Transfers
of Mortgaged Property.
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32
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Section
5.02.
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
33
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Section
5.03.
|
Servicing
Compensation.
|
33
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|
Section
5.04.
|
Servicer
Compliance Statement..
|
34
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Section
5.05.
|
Report
on Assessment of Compliance and Attestation.
|
34
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Section
5.06.
|
Inspection.
|
35
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ARTICLE
VI.
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REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
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Section
6.01.
|
Representations,
Warranties and Agreements of the Servicer.
|
36
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|
Section
6.02.
|
Remedies
for Breach of Representations and Warranties of the
Servicer.
|
38
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Section
6.03.
|
Additional
Indemnification by the Servicer.
|
39
|
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Section
6.04.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
41
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Section
6.05.
|
Reporting
Requirements of the Commission and Indemnification.
|
42
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ARTICLE
VII.
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|
THE
SERVICER
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Section
7.01.
|
Merger
or Consolidation of the Servicer.
|
42
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|
Section
7.02.
|
Limitation
on Liability of the Servicer and Others.
|
43
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Section
7.03.
|
Limitation
on Resignation and Assignment by the Servicer.
|
43
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Section
7.04.
|
Subservicing
Agreements and Successor Subservicer.
|
44
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ARTICLE
VIII.
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|
TERMINATION
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Section
8.01.
|
Termination
for Cause.
|
45
|
-ii-
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Section
8.02.
|
Termination
Without Cause.
|
48
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ARTICLE
IX.
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|
MISCELLANEOUS
PROVISIONS
|
||
|
Section
9.01.
|
Successor
to the Servicer.
|
48
|
|
Section
9.02.
|
Costs.
|
50
|
|
Section
9.03.
|
Protection
of Confidential Information.
|
50
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Section
9.04.
|
Notices.
|
51
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Section
9.05.
|
Severability
Clause.
|
52
|
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Section
9.06.
|
No
Personal Solicitation.
|
53
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Section
9.07.
|
Counterparts.
|
53
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Section
9.08.
|
Place
of Delivery and Governing Law.
|
53
|
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Section
9.09.
|
Further
Agreements.
|
53
|
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Section
9.10.
|
Intention
of the Parties.
|
54
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Section
9.11.
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Successors
and Assigns; Assignment of Servicing Agreement.
|
54
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Section
9.12.
|
Assignment
by the Seller.
|
54
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Section
9.13.
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Amendment.
|
54
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Section
9.14.
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Waivers.
|
55
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Section
9.15.
|
Exhibits.
|
55
|
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Section
9.16.
|
Intended
Third Party Beneficiaries.
|
55
|
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Section
9.17.
|
General
Interpretive Principles.
|
55
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Section
9.18.
|
Reproduction
of Documents.
|
56
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EXHIBITS
|
EXHIBIT
A
|
MORTGAGE
LOAN SCHEDULE
|
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EXHIBIT
B
|
CUSTODIAL
ACCOUNT CERTIFICATION
|
|
EXHIBIT
C
|
ESCROW
ACCOUNT CERTIFICATION
|
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EXHIBIT
D
|
TBW
2007-2 POOLING AND SERVICING AGREEMENT
|
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EXHIBIT
E
|
FORM
OF LOAN LOSS REPORT
|
|
EXHIBIT
F
|
FORM
OF CERTIFICATION
|
|
EXHIBIT
G
|
[RESERVED]
|
|
EXHIBIT
H
|
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF
COMPLIANCE
|
|
EXHIBIT
I
|
TRANSACTION
PARTIES
|
|
EXHIBIT
J
|
FORM
OF ANNUAL OFFICER’S CERTIFICATE
|
|
EXHIBIT
K
|
CONTENTS
OF SERVICING FILE
|
|
EXHIBIT
L
|
CALCULATION
OF REALIZED LOSS/GAIN FORM 332-INSTRUCTION
SHEET
|
|
EXHIBIT
M
|
STANDARD
FILE LAYOUT - DELINQUENCY REPORTING
|
|
EXHIBIT
N
|
STANDARD
FILE LAYOUT - MASTER SERVICING
|
-iii-
This
SECURITIZATION SERVICING AGREEMENT (this “Agreement”), entered into as of the
1st day of May, 2007, by and between DLJ MORTGAGE CAPITAL, INC., a Delaware
corporation (“DLJMC” or the “Seller”), XXXXXX, XXXX & XXXXXXXX MORTGAGE
CORP. (the “Servicer”), XXXXX FARGO BANK, N.A., as master servicer (in such
capacity, the “Master Servicer”) and as trust administrator (in such capacity,
the “Trust Administrator”) and U.S. BANK NATIONAL ASSOCIATION, as trustee (the
“Trustee”), recites and provides as follows:
W I T N E S S E T H:
WHEREAS,
DLJMC has conveyed certain mortgage loans identified on Schedule I hereto (the
“Serviced Mortgage Loans”) on a servicing-retained basis to Credit Suisse First
Boston Mortgage Securities Corp., a Delaware corporation (“CSFBMSC”) pursuant to
an assignment and assumption agreement (the “Assignment Agreement”) dated as of
May 1, 2007 by and between DLJMC and CSFBMSC, and CSFBMSC in turn has conveyed
the Serviced Mortgage Loans to the Trustee, pursuant to a pooling and servicing
agreement dated as of May 1, 2007 (the “Pooling and Servicing Agreement”), among
the Trustee, CSFBMSC, as depositor, DLJMC, as seller, the Servicer and Xxxxx
Fargo Bank, N.A., as master servicer and as trust administrator.
WHEREAS,
on and after the Closing Date the Seller and the Trustee desire that the
Servicer service the Mortgage Loans pursuant to this Agreement, and the Servicer
has agreed to do so, subject to the right of the Seller and of the Master
Servicer to terminate the rights and obligations of the Servicer hereunder
at
any time and to the other conditions set forth herein;
WHEREAS,
the Master Servicer shall be obligated under the Pooling and Servicing
Agreement, among other things, to supervise the servicing of the Mortgage Loans
on behalf of the Trustee, and shall have the right, under certain circumstances,
to terminate the rights and obligations of the Servicer under this Servicing
Agreement upon the occurrence and continuance of an Event of Default as provided
herein;
WHEREAS,
the Seller and the Servicer acknowledge and agree that, as provided in Section
9.12 hereof, the Seller will assign (exclusive of the Seller’s rights arising
under Section 8.02) its rights under this Agreement to the Depositor, which
in
turn shall assign such rights to the Trustee, and the Trustee then shall succeed
to all rights of the Seller under this Agreement; provided that, notwithstanding
the foregoing, no obligations of the Seller under this Agreement are being
assumed by the Trustee except as expressly provided herein, and then only to
the
extent such obligations can be satisfied from moneys available therefor under
the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller, the Master Servicer, the Trust Administrator,
the Trustee and the Servicer hereby agree as follows:
-1-
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions that service mortgage loans of the same type
as
such Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located.
Adjustable
Rate Mortgage Loan:
An
adjustable rate Mortgage Loan purchased pursuant to this Agreement.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on the Mortgage Loan is
adjusted in accordance with the terms of the Mortgage Note.
Agreement:
This
Securitization Servicing Agreement and all amendments hereof and supplements
hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the
underwriting requirements of the originator, and (ii) the purchase price paid
for the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan; provided,
however,
in the
case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the underwriting requirements of the
originator.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage
to
the party indicated therein or, if the related Mortgage has been recorded in
the
name of MERS or its designee, such actions as are necessary to cause the Seller
or its designee to be shown as the owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in New York or the states in which the offices of the
Master Servicer or the Servicer or the Corporate Trust Office of the Trustee
or
the Trust Administrator are located are authorized or obligated by law or
executive order to be closed.
Certificateholder:
The
meaning set forth in the Pooling and Servicing Agreement.
-2-
Certificates:
Any or
all of the Certificates issued pursuant to the Pooling and Servicing
Agreement.
Closing
Date:
May 30,
2007.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan documents.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Co-op
Stock:
With
respect to a Co-op Loan, the single outstanding class of stock, partnership
interest or other ownership instrument in the related residential cooperative
housing corporation.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
3.04.
Custodial
Agreements:
The
custodial agreement dated as of May 1, 2007, relating to the custody of the
Mortgage Loans, between the Custodian, the Trust Administrator and the
Trustee.
Custodian:
Colonial Bank, N.A. and its successors and assigns.
Cut-off
Date:
May 1,
2007.
Depositor:
Credit
Suisse First Boston Mortgage Securities Corp., a Delaware corporation, or any
successor in interest.
Determination
Date:
With
respect to each Remittance Date, the 10th Business Day of the month in which
such Remittance Date occurs, or, if such 10th day is not a Business Day, the
next succeeding Business Day.
Distribution
Date:
Commencing in June 2007, the 25th day of each month (or, if such day is not
a
Business Day, the next succeeding Business Day).
-3-
Due
Date:
The day
of the calendar month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace. Pursuant to Section 4.04, with respect to the
Mortgage Loans for which payment from the Mortgagor is due on a day other than
the first day of the month, such Mortgage Loans will be treated as if the
Monthly Payment is due on the first day of the immediately succeeding
month.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month immediately preceding the month of the Remittance Date and ending on
the
first day of the month of the Remittance Date.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt obligations of such holding company) have been rated by each
Rating Agency in its highest short-term rating category (or a short-term rating
of at least “A-2,” in the case of S&P), or (iii) a segregated trust account
or accounts (which shall be a “special deposit account”) maintained with the
Trustee, the Trust Administrator or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity,
in a
manner acceptable to the Trustee, the Trust Administrator and the Rating
Agencies. Eligible Accounts may bear interest.
Escrow
Account:
The
separate account or accounts operated and maintained pursuant to Section
3.06.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 8.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
entity formerly known as the Federal National Mortgage Association, or any
successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all amendments
or additions thereto, including but not limited to future updates
thereof.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
-4-
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
3.14.
First
Lien:
With
respect to any second lien Mortgage Loan, the mortgage loan relating to the
corresponding Mortgaged Property having a first priority lien.
Fitch:
Fitch,
Inc., or any successor in interest.
Xxxxxxx
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac Servicers’ Guide and all
amendments or additions thereto, including but not limited to future updates
thereof.
Holder:
The
meaning set forth in the Pooling and Servicing Agreement.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property, including the proceeds of
any
hazard or flood insurance policy, LPMI Policy or PMI Policy.
Lender
Paid Mortgage Insurance Policy Program
or
LPMI
Policies:
A
program or policy in which, for any Mortgage Loan underwritten with an LTV
greater than 80.00% and less than 97.00%, the owner or servicer of such Mortgage
Loan is responsible for the premiums associated with the mortgage insurance
policy.
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related REO Property, if
the
Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan and, with respect to any second lien Mortgage Loan,
the outstanding principal amount of any related First Lien as of the date of
origination of such Mortgage Loan, to (i) the Appraised Value of the related
Mortgaged Property at origination with respect to a Refinanced Mortgage Loan
or
(ii) the lesser of the Appraised Value of the related Mortgaged Property at
origination or the purchase price of the related Mortgaged Property with respect
to all other Mortgage Loans.
LPMI
Loan:
A
Mortgage Loan with a LPMI Policy.
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
pursuant to which the related premium is to be paid by the Master Servicer
or
the Trust Administrator from payments of interest made by the Mortgagor in
an
amount as is set forth in the related Mortgage Loan Schedule. An LPMI Policy
shall also include any policy of primary mortgage guaranty insurance issued
by a
Qualified Insurer that is purchased by the Seller with respect to some or all
of
the Mortgage Loans.
-5-
Master
Servicer:
Xxxxx
Fargo Bank, N.A., or any successor in interest, or if any successor master
servicer shall be appointed as provided in the Pooling and Servicing Agreement,
then such successor master servicer.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate) that was due on the Mortgage Loan on the
Due
Date in the related Due Period and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the subject of
a
previous Monthly Advance, but only to the extent that such amount is expected,
in the reasonable judgment of the Servicer, to be recoverable from collections
or other recoveries in respect of such Mortgage Loan. To the extent that the
Servicer determines that any such amount is not recoverable from collections
or
other recoveries in respect of such Mortgage Loan, such determination shall
be
evidenced by an Officer’s Certificate of a Servicing Officer delivered to the
Master Servicer setting forth such determination and the procedures and
considerations of the Servicer forming the basis of such
determination.
Monthly
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note which creates a first or second
lien on an unsubordinated estate in fee simple in real property securing the
Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien upon
a
leasehold estate of the Mortgagor. With respect to a Co-op Loan, the related
Security Agreement.
-6-
Mortgage
Interest Rate:
With
respect to each Mortgage Loan, the annual rate of interest borne on the
applicable Mortgage Note after giving effect to any applicable Relief Act
Reduction.
Mortgage
Loan:
An
individual mortgage loan that is the subject of this Agreement and identified
on
the related Mortgage Loan Schedule, which Mortgage Loan includes without
limitation the Mortgage Loan documents, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Master Servicer, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
A
schedule of the Mortgage Loans attached hereto as Exhibit A setting forth
information with respect to such Mortgage Loans as agreed to by the Seller,
the
Servicer and the Master Servicer, including but not limited to (i) a data field
indicating whether such Mortgage Loan is insured under a PMI Policy or LPMI
Policy and identifying the related Qualified Insurer, (ii) a Prepayment Penalty
Schedule and (iii) the Maximum Mortgage Interest Rate.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Co-op Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a fee simple
parcel of real estate or a leasehold estate, the term of which is equal to
or
longer than the term of the related Mortgage Note. With respect to a Co-op
Loan,
the related Co-op Stock and Co-op Lease securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgage
Purchase Agreement:
The
Seller’s Purchase, Warranties and Servicing Agreement dated as of February 1,
2007 pursuant to which the Seller purchased the Mortgage Loans from Xxxxxx,
Bean
& Xxxxxxxx Mortgage Corp.
Mortgagor:
The
obligor on a Mortgage Note.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, the Chief Executive Officer, a Senior Vice President or a Vice
President and by the Treasurer, the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Servicer, and delivered to the Seller, the
Master Servicer, the Trust Administrator and/or the Trustee as required by
this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Servicer, reasonably
acceptable to the Seller, the Trustee, the Trust Administrator and/or the Master
Servicer, but which must be an independent outside counsel with respect to
any
such opinion of counsel concerning all federal income tax matters. An
independent outside counsel’s Opinion of Counsel shall be obtained at the
expense of the party requesting such Opinion of Counsel but shall be obtained
at
the expense of the Trust Fund if the Trustee or the Trust Administrator is
requesting such opinion.
-7-
Participating
Entity:
Any
Person “participating in the servicing function” within the meaning of Item 1122
of Regulation AB.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
Prepayment
Penalty:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
as
specified in the Prepayment Penalty Schedule, if any, due in connection with
a
full or partial prepayment of such Mortgage Loan during the immediately
preceding Principal Prepayment Period in accordance with the terms
thereof.
Prepayment
Penalty Schedule:
A data
field in the Mortgage Loan Schedule attached hereto as Exhibit A which sets
forth the amount or method of calculation of the Prepayment Penalty and the
term
during which such Prepayment Penalty is imposed with respect to a Mortgage
Loan.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied to
such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net of the Servicing Fee) that would have accrued on the
amount of such Principal Prepayment during the period commencing on the date
as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the day immediately preceding such Due Date, inclusive.
Primary
Mortgage Insurance Policy
or
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
including any bulk policy acquired in respect of the Mortgage Loans, as required
by this Agreement with respect to certain Mortgage Loans.
Prime
Rate:
The
prime rate published from time to time, as published as the average rate in
The
Wall Street Journal
(Northeast Edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, including any payment
or other recovery of principal in connection with repurchase of a Mortgage
Loan
by the Seller, the Servicer or any other Person, which is received in advance
of
its scheduled Due Date, including any Prepayment Penalty or premium thereon
and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Principal
Prepayment Period:
With
respect to the Mortgage Loans and any Principal Prepayment in full, the
period that commences on and includes the 15th day of the month immediately
preceding the month in which such Remittance Date occurs and ends on and
includes the 14th day of the month in which such Remittance Date occurs.
-8-
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, approved as an insurer by Xxxxxx
Mae or Xxxxxxx Mac.
Rating
Agency:
Each of
Moody’s and S&P or their successors. If such agencies or their successors
are no longer in existence, “Rating Agencies” shall be such nationally
recognized statistical rating agencies, or other comparable person, agreed
upon
and designated by the Seller, notice of which designation shall be given to
the
Trustee, the Trust Administrator, the Master Servicer and the
Servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§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.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application of
the
Servicemembers Civil Relief Act or similar state or local law, any amount by
which interest collectible on such Mortgage Loan for the Due Date in the related
Due Period is less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without giving effect to such
reduction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
With
respect to each Distribution Date, the 18th day (or if such 18th day is not
a
Business Day, the first Business Day immediately following) of the month in
which such Distribution Date occurs.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
3.16.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trustee through
foreclosure or by deed in lieu of foreclosure, as described in Section
3.16.
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. or any successor in interest.
Securities
Act:
The
Securities Act of 1933, as amended.
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Security
Agreement:
With
respect to a Co-op Loan, the agreement or mortgage creating a security interest
in favor of the originator of the Co-op Loan in the related Co-op
Stock.
Seller:
DLJ
Mortgage Capital, Inc. or its successor in interest or assigns.
Servicer:
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp., or its successor in interest or assigns or
any successor to the Servicer under this Agreement as herein
provided.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations, including but not
limited to the cost of (a) the preservation, restoration and protection of
the
Mortgaged Property, (b) any enforcement or administrative or judicial
proceedings, or any legal work or advice specifically related to servicing
the
Mortgage Loans, including but not limited to, including foreclosures,
bankruptcies, condemnations, drug seizures, elections, foreclosures by
subordinate or superior lienholders, and other legal actions incidental to
the
servicing of the Mortgage Loans (provided
that
such expenses are reasonable and that the Servicer specifies the Mortgage
Loan(s) to which such expenses relate and, provided,
further,
that
any such enforcement, administrative or judicial proceeding does not arise
out
of a breach of any representation, warranty or covenant of TBW as seller under
the Mortgage Purchase Agreement), (c) the management and liquidation of any
REO
Property, (d) taxes, assessments, water rates, sewer rents and other charges
that are or may become a lien upon the Mortgaged Property, PMI Policy premiums
and fire and hazard insurance coverage, (e) any expenses sustained by the
Servicer with respect to the liquidation of the Mortgaged Property in accordance
with the terms of this Agreement and (f) compliance with the obligations
pursuant to the provisions of the Xxxxxxx Mac Guides.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Due Period and any Mortgage Loan, an amount equal to one-twelfth
the product of (i) the Servicing Fee Rate and (ii) the outstanding principal
balance of such Mortgage Loan as of the related Determination Date. The
Servicing Fee is payable solely from the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds to the extent permitted by Section 3.05 of this Agreement)
of
such Monthly Payments collected by the Servicer, or as otherwise provided under
this Agreement.
Servicing
Fee Rate:
0.025%
per annum.
Servicing
File:
The
items pertaining to a particular Mortgage Loan including but not limited to
the
computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating and/or
servicing each Mortgage Loan, that are delivered to or generated by the Servicer
and held in trust for the Trustee by the Servicer, which shall include the
documents specified in Exhibit
K
and
copies of all documents for such Mortgage Loan specified in Exhibit
A-1
of the
Mortgage Purchase Agreement.
-10-
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans, whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer upon request, as
such
list may from time to time be amended.
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 the Mortgage Loans but performs one or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to the Mortgage Loans under the direction or authority of the Servicer or a
related Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement that are
identified in Item 1122(d) of Regulation AB.
TBW:
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
Trust
Administrator:
Xxxxx
Fargo Bank, N.A. or its successor in interest.
Trust
Fund:
The
trust fund established by the Pooling and Servicing Agreement, the assets of
which consist of the Mortgage Loans and any other assets as set forth
therein.
Trustee:
U.S.
Bank National Association, in its capacity as trustee under the Pooling and
Servicing Agreement, or any successor in such capacity, or if any successor
trustee or co-trustee shall be appointed as provided in the Pooling and
Servicing Agreement, then such successor trustee or such co-trustee, as the
case
may be.
Any
capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
ARTICLE
II.
SELLER’S
ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section
2.01. Contract
for Servicing; Possession of Servicing Files.
The
Seller, by execution and delivery of this Agreement, does hereby contract with
the Servicer as an independent contractor, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On or before the Closing
Date, the Seller shall cause to be delivered to the Servicer the Servicing
Files
with respect to the Mortgage Loans listed on the Mortgage Loan Schedule. The
Servicer shall maintain a Servicing File with respect to each Mortgage Loan
in
order to service such Mortgage Loans pursuant to this Agreement, and each
Servicing File delivered to the Servicer shall be held in trust by the Servicer
for the benefit of the Trustee; provided,
however,
that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller. The Servicer’s possession of any portion of the
Mortgage Loan documents shall be at the will of the Trustee for the sole purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Servicing File shall be vested in the Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in
the Trustee and shall be retained and maintained, in trust, by the Servicer
at
the will of the Trustee in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall be
appropriately marked to clearly reflect the ownership of the related Mortgage
Loan by the Trustee. The Servicer shall release from its custody the contents
of
any Servicing File retained by it only in accordance with this
Agreement.
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Section
2.02. Books
and Records.
All
rights arising out of the Mortgage Loans shall be vested in the Trustee, subject
to the Servicer’s right to service and administer the Mortgage Loans hereunder
in accordance with the terms of this Agreement. All funds received on or in
connection with a Mortgage Loan, other than the Servicing Fee and other
compensation and reimbursement to which the Servicer is entitled as set forth
herein, including but not limited to Section 5.03, shall be received and held
by
the Servicer in trust for the benefit of the Trustee pursuant to the terms
of
this Agreement.
The
Servicer shall forward to the related Custodian original documents evidencing
an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 3.01 promptly after their execution;
provided,
however,
that
the Servicer shall provide such Custodian with a certified true copy of any
such
document submitted for recordation within one week of its execution, and shall
provide the original of any document submitted for recordation or a copy of
such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within 120 days of its submission for
recordation.
ARTICLE
III.
SERVICING
OF THE MORTGAGE LOANS
Section
3.01. Servicer
to Service.
The
Servicer, as an independent contractor, shall service and administer the
Mortgage Loans from and after the Closing Date in accordance with this Agreement
and with Accepted Servicing Practices and shall have full power and authority,
acting alone or through the utilization of a Subservicer or Subcontractor,
to do
or cause to be done any and all things in connection with such servicing and
administration that the Servicer may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices. The
Servicer shall service and administer the Mortgage Loans through the exercise
of
the same care that it customarily employs for its own account. Except as set
forth in this Agreement, the Servicer shall service the Mortgage Loans in strict
compliance with the servicing provisions of the Xxxxxxx Mac Guides (special
servicing option), which include but are not limited to provisions regarding
the
liquidation of Mortgage Loans, the collection of Mortgage Loan payments, the
payment of taxes, insurance and other charges, the maintenance of hazard
insurance with a Qualified Insurer, the maintenance of mortgage impairment
insurance, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of Primary
Mortgage Insurance Policies, insurance claims, the title, management of REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Files, annual
statements, and examination of records and facilities. In the event of any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and any of the servicing provisions of the Xxxxxxx Mac Guides,
the provisions of this Agreement shall control and be binding upon the parties
hereto. The Servicer shall be responsible for any and all acts of a Subservicer
or Subcontractor and the Servicer’s utilization of such Subservicer or
Subcontractor shall in no way relieve the liability of the Servicer under this
Agreement.
-12-
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Trust Fund;
provided,
however,
that
unless the Servicer has obtained the prior written consent of the Master
Servicer, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate (except for
modifications relating to Relief Act Reductions), defer or forgive the payment
of principal or interest, reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final maturity date
on
such Mortgage Loan. In the event of any such modification that permits the
deferral of interest or principal payments on any Mortgage Loan, the Servicer
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred, make
a
Monthly Advance in accordance with Section 4.03, in an amount equal to the
difference between (a) such month’s principal and one month’s interest at the
Mortgage Loan Remittance Rate on the unpaid principal balance of such Mortgage
Loan and (b) the amount paid by the Mortgagor. The Servicer shall be entitled
to
reimbursement for such advances to the same extent as for all other advances
made pursuant to Section 3.05. Without limiting the generality of the foregoing,
the Servicer shall continue, and is hereby authorized and empowered, to prepare,
execute and deliver on behalf of itself and the Trustee, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, provided
that
upon the full release or discharge, the Servicer shall notify the Custodian
of
such full release or discharge. Upon the reasonable request of the Servicer,
the
Trustee shall execute and deliver to the Servicer with any powers of attorney
and other documents, furnished to it by the Servicer and reasonably satisfactory
to the Trustee, necessary or appropriate to enable the Servicer to carry out
its
servicing and administrative duties under this Agreement, provided
that
the
Trustee shall not be liable for the actions of the Servicer under such powers
of
attorney unless such actions of the Servicer are performed at, and in accordance
with, the written direction of the Trustee. Promptly after the execution of
any
assumption, modification, consolidation or extension of any Mortgage Loan,
the
Servicer shall forward to the Master Servicer copies of any documents evidencing
such assumption, modification, consolidation or extension. Notwithstanding
anything to the contrary contained in this Servicing Agreement, the Servicer
shall not make or permit any modification, waiver or amendment of any term
of
any Mortgage Loan that would cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC or result in the imposition
of
any tax under Section 860F(a) or Section 860G(d) of the Code.
-13-
The
Servicer is authorized and empowered by the Trustee, in its own name, when
the
Servicer believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS® System, or cause the removal from the registration of
any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the
Trustee, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and
assigns.
The
Servicer shall not without the Trustee’s written consent: (i) initiate any
action, suit or proceedings solely under the Trustee’s name without indicating
the Servicer’s, representative capacity or (ii) take any action with the intent
to cause, and which actually does cause, the Trustee to be registered to do
business in any state. The Servicer shall indemnify the Trustee for any and
all
costs, liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse of such powers of attorney by the
Servicer.
The
Servicer shall accurately and fully report its borrower credit files related
to
the Mortgage Loans to Equifax
Credit Information Services, Inc., Trans Union, LLC and Experian Information
Solution, Inc., on a monthly basis.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures (including collection procedures) and exercise the same care that
it
would employ and exercise in servicing and administering similar mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this
Agreement.
Section
3.02. Collection
of Mortgage Loan Payments.
Continuously
from the Closing Date until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer shall proceed diligently to collect all payments
due under each of the Mortgage Loans when the same shall become due and payable,
shall, to the extent such procedures shall be consistent with this Agreement,
Accepted Servicing Practices, and the terms and provisions of related Primary
Mortgage Insurance Policy or LPMI Policy, follow such collection procedures
as
it follows with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account, and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and each related Mortgaged Property,
to the end that the installments payable by the Mortgagors will be sufficient
to
pay such charges as and when they become due and payable.
-14-
Section
3.03. Realization
Upon Defaulted Mortgage Loans.
The
Servicer shall use its best efforts, consistent with the procedures that the
Servicer would use in servicing similar mortgage loans for its own account,
to
foreclose upon or otherwise comparably convert the ownership of such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.01. Foreclosure, comparable proceedings or other loss
mitigation efforts shall be initiated within 120 days of default for Mortgaged
Properties for which no satisfactory arrangements can be made for collection
of
delinquent payments. The Servicer shall use its best efforts to realize upon
defaulted Mortgage Loans in such a manner as will maximize the receipt of
principal and interest by the Trustee, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion (i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to the Master Servicer after reimbursement to itself for such
expenses and (ii) that such expenses will be recoverable by the Servicer through
Insurance Proceeds or Liquidation Proceeds from the related Mortgaged Property.
In the event that any payment due under any Mortgage Loan and not postponed
pursuant to Section 3.01 is not paid when the same becomes due and payable,
or
in the event the Mortgagor fails to perform any other covenant or obligation
under the Mortgage Loan and such failure continues beyond any applicable grace
period, the Servicer shall take such action as (1) the Servicer would take
for
other institutional investors under similar circumstances with respect to a
similar mortgage loan, (2) shall be consistent with Accepted Servicing
Practices, (3) the Servicer shall determine prudently to be in the best interest
of the Trust Fund, and (4) is consistent with any related PMI Policy or LPMI
Policy. In the event that any payment due under any Mortgage Loan is not
postponed pursuant to Section 3.01 and remains delinquent for a period of 120
days or any other default continues for a period of 120 days beyond the
expiration of any grace or cure period, the Servicer shall commence foreclosure,
comparable proceedings or loss mitigation efforts, provided
that
prior to commencing foreclosure proceedings, the Servicer shall notify the
Master Servicer (who will notify the Trustee and the Trust Administrator) in
writing of the Servicer’s intention to do so, and the Servicer shall not
commence foreclosure proceedings if the Master Servicer objects to such action
within three (3) Business Days of receiving such notice. In such connection,
the
Servicer shall be responsible for advancing all costs and expenses incurred
by
it in any such proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof from the related Mortgaged Property,
as contemplated in Section 3.05.
Section
3.04. Establishment
of and Deposits to Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts, titled “Xxxxxx, Xxxx & Xxxxxxxx
Mortgage Corp. in trust for U.S. Bank National Association, as Trustee for
TBW
Mortgage-Backed Trust, 2007-2.” The Custodial Account shall be an Eligible
Account. Funds deposited in the Custodial Account may be drawn on by the
Servicer in accordance with Section 3.05. The creation of any Custodial Account
shall be evidenced by a certification in the form of Exhibit B hereto. A copy
of
such certification shall be furnished to the Master Servicer no later than
30
days after the Closing Date.
-15-
The
Servicer shall deposit in the Custodial Account on a daily basis and retain
therein the following payments and collections received by the Servicer and
payments made by the Servicer after the Cut-off Date (other than scheduled
payments of principal and interest due on or before the Cut-off
Date):
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Prepayment Penalties;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 3.12 (other than proceeds to be held in the Escrow Account and applied
to the restoration and repair of the Mortgaged Property or released to the
Mortgagor in accordance with the related Mortgage Loan documents, applicable
law
or Accepted Servicing Practices);
(vi) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with the related
Mortgage Loan documents, applicable law or Accepted Servicing
Practices;
(vii) any
amount required to be deposited in the Custodial Account pursuant to this
Agreement;
(viii) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Servicer’s own funds without reimbursement therefor up to a
maximum amount per month of the Servicing Fee actually received for such month
for the Mortgage Loans;
(ix) all
Monthly Advances made by the Servicer pursuant to Section 4.03;
(x) any
amounts received from TBW as seller of the Mortgage Loans or any other person
giving representations and warranties with respect to a Mortgage Loan, in
connection with the repurchase of any Mortgage Loan;
(xi) any
amounts required to be deposited by the Servicer pursuant to Section 3.12 in
connection with the deductible clause in any blanket hazard insurance policy;
-16-
(xii) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xiii) any
amounts required to be deposited by the Servicer pursuant to Section 3.15 in
connection with any unpaid claims that are a result of a breach by the Servicer
or any Subservicer of the obligations hereunder or under the terms of a PMI
Policy; and
(xiv) any
amounts received by the Servicer under a PMI or LPMI Policy.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the late payment charges and
assumption fees, to the extent permitted by Section 5.03, need not be deposited
by the Servicer into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
3.05.
Section
3.05. Permitted
Withdrawals From Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Master Servicer in the amounts and in the manner provided for
in
Section 4.01;
(ii) in
the
event the Servicer has elected not to retain the Servicing Fee out of any
Mortgagor payments on account of interest or other recovery of interest with
respect to a particular Mortgage Loan (including late collections of interest
on
such Mortgage Loan, or interest portions of Insurance Proceeds, Liquidation
Proceeds or Condemnation Proceeds) prior to the deposit of such Mortgagor
payment or recovery in the Custodial Account, to pay to itself the related
Servicing Fee from all such Mortgagor payments on account of interest or other
such recovery for interest with respect to that Mortgage Loan;
(iii) following
the liquidation of a Mortgage Loan, to reimburse itself for unreimbursed Monthly
Advances and Servicing Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (iii) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition Proceeds and other amounts received in respect of the related REO
Property, and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to such Mortgage Loan, it
being understood that,
in the
case of any such reimbursement, the Servicer’s right thereto shall be prior to
the rights of the Trust Fund;
(iv) to
reimburse itself for any unpaid Servicing Fees, the Servicer’s right to
reimbursement pursuant to this subclause (iv) with respect to any Mortgage
Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and other amounts received in respect of
the
related REO Property, and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that,
in the
case of any such reimbursement, the Servicer’s right thereto shall be prior to
the rights of the Trust Fund;
-17-
(v) to
reimburse itself for remaining unreimbursed Servicing Advances and unpaid
Servicing Fees with respect to any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts that it expects to recover on behalf
of
the Trust Fund from or on account of such Mortgage Loan have been
recovered;
(vi) to
pay
itself interest on funds deposited in the Custodial Account;
(vii) to
transfer funds to another Eligible Institution in accordance with Section 3.11;
(viii) to
withdraw funds deposited in error;
(ix) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(x) to
make
payments in respect of the premiums due, if any, on the LPMI Policies, if
applicable.
Section
3.06. Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, “Xxxxxx, Bean
& Xxxxxxxx Mortgage Corp., in trust for U.S. Bank National Association, as
Trustee for TBW Mortgage-Backed Trust, Series 2007-2.” The Escrow Accounts shall
be Eligible Accounts. Funds deposited in the Escrow Account may be drawn on
by
the Servicer in accordance with Section 3.07. The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit C hereto. A copy
of
such certification shall be furnished to the Master Servicer no later than
30
days after the Closing Date.
The
Servicer shall deposit in the Escrow Account or Accounts within one (1) Business
Day of the Servicer’s receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.07.
The
Servicer shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
-18-
Section
3.07. Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums (if applicable), fire and hazard insurance
premiums, condominium charges or other items constituting Escrow Payments for
the related Mortgage;
(ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan that represent late collections of Escrow Payments
thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required for
Escrow Payments under the terms of the related Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Custodial Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 3.12;
(vi) to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(vii) to
withdraw funds deposited in error;
(viii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(ix) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 3.04.
The
Servicer shall be responsible for the administration of the Escrow Accounts
and
shall be obligated to make Servicing Advances to the Escrow Accounts in respect
of its obligations under this Section 3.07, reimbursable from the Escrow
Accounts or Custodial Account to the extent not collected from the related
Mortgagor, anything in this Agreement to the contrary notwithstanding, when
and
as necessary to avoid the lapse of insurance coverage on the Mortgaged Property,
or that the Servicer knows, or in the exercise of the required standard of
care
of the Servicer hereunder should know, is necessary to avoid the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Servicer receives notice
of
a tax lien with respect to the Mortgage being imposed, the Servicer will, within
ten Business Days of such notice, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property.
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Section
3.08. Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust the
Mortgage Interest Rate on the related Adjustment Date and shall adjust the
Monthly Payment on the related mortgage payment adjustment date, if applicable,
in compliance with the requirements of applicable law and the related Mortgage
and Mortgage Note. The Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage
Note
and Mortgage regarding the Mortgage Interest Rate and Monthly Payment
adjustments. The Servicer shall promptly, upon written request therefor, deliver
to the Master Servicer such notifications and any additional applicable data
regarding such adjustments and the methods used to calculate and implement
such
adjustments. Upon the discovery by the Servicer or the receipt of notice from
the Master Servicer that the Servicer has failed to adjust a Mortgage Interest
Rate or Monthly Payment in accordance with the terms of the related Mortgage
Note, the Servicer shall immediately deposit in the Custodial Account from
its
own funds the amount of any interest loss or deferral caused the Seller
thereby.
Section
3.09. [Reserved.]
Section
3.10. Payment
of Taxes, Insurance and Other Charges.
(a) With
respect to each Mortgage Loan that provides for Escrow Payments, the Servicer
shall maintain accurate records of ground rents, taxes, assessments, water
rates
and other escrowed that which are or may become a lien upon the Mortgaged
Property and the status of primary mortgage insurance premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills for
the
payment of such charges (including renewal premiums) (each such charge, a
“Property
Charge”)
and
shall effect payment thereof prior to the applicable penalty or termination
date
and at a time appropriate for securing maximum discounts allowable, employing
for such purpose deposits of the Mortgagor in the Escrow Account which shall
have been estimated and accumulated by the Servicer in amounts sufficient for
such purposes, as allowed under the terms of the Mortgage or applicable law.
The
Servicer assumes full responsibility for the timely payment of all such bills
and shall effect timely payment of all such bills irrespective of each
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments, and the Servicer shall make advances from its own funds to
effect such payments.
(b) To
the
extent that a Mortgage Loan does not provide for Escrow Payments, the Servicer
shall make advances from its own funds to effect payment of all Property Charges
upon receipt of notice of any failure to pay on the part of the Mortgagor,
or at
such other time as the Servicer determines to be in the best interest of the
Trust Fund, provided
that in
any event the Servicer shall pay such charges on or before the earlier
of (a)
any date by which payment is necessary to preserve the lien status of the
Mortgage or (b) the date that is 90 days after the date on which such charges
first became due. The Servicer shall pay any late fee or penalty that is payable
due to any delay in payment of any Property Charge after the earlier
to occur
of (a) the date on which the Servicer receives notice of the failure of the
Mortgagor to pay such Property Charge or (b) the date that is 90 days after
the
date on that such charges first became due.
-20-
Section
3.11. Protection
of Accounts.
The
Servicer may transfer the Custodial Account or any Escrow Account to a different
Eligible Account from time to time and shall give notice to the Master Servicer
of any change in the location of the Custodial Account no later than 30 days
after any such transfer is made and deliver to the Master Servicer, upon
request, a certification notice in the form of Exhibit B or Exhibit C, as
applicable, with respect to such Eligible Account; provided,
however,
that in
the event the Custodial Account or any Escrow Account ceases to be an Eligible
Account, the Servicer shall transfer such Custodial Account or Escrow Account,
as the case may be, to an account that is an Eligible Account.
The
Servicer shall bear any expenses, losses or damages sustained by the Master
Servicer or the Trustee if the Custodial Account and/or the Escrow Account
are
not demand deposit accounts.
Section
3.12. Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance such that all buildings upon the Mortgaged Property are insured by
a
generally acceptable insurer acceptable under Xxxxxx Xxx or Xxxxxxx Mac
guidelines against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
in
an amount which is at least equal to the lesser
of (i)
the replacement value of the improvements securing such Mortgage Loan and (ii)
the greater
of (a)
the outstanding principal balance of the Mortgage Loan and (b) an amount such
that the proceeds thereof shall be sufficient to prevent the Mortgagor or the
loss payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available), a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx Mac in an
amount representing coverage equal to the least
of (i)
the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan and (iii) the
maximum amount of insurance that is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan the Servicer determines in accordance with applicable law and
pursuant to the Xxxxxxx Mac Guides that a Mortgaged Property is located in
a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within 45 days after such
notification, the Servicer shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
-21-
If
a
Mortgage Loan is secured by a unit in a condominium project, the Servicer shall
verify that the coverage required of the owner’s association, including hazard,
flood, liability and fidelity coverage, is being maintained in accordance with,
at a minimum, the then-current Xxxxxxx Mac requirements.
It
is
understood and agreed that no other additional insurance need be required by
the
Servicer or maintained on property acquired in respect of the Mortgage Loan,
other than pursuant to this Agreement, the Xxxxxxx Mac Guides or such applicable
state or federal laws and regulations as shall at any time be in force and
as
shall require such additional insurance.
All
policies required hereunder shall name the Servicer and its successors and/or
assigns as loss payee and shall be endorsed with standard or union mortgagee
clauses, without contribution, which shall provide for at least 30 days prior
written notice of any cancellation, reduction in amount or material change
in
coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent; provided,
however,
that
the Servicer shall not accept any such insurance policies from insurance
companies unless such companies are Qualified Insurers. The Servicer shall
determine that such policies provide sufficient risk coverage and amounts,
that
they insure the property owner, and that they properly describe the property
address. The Servicer shall furnish to the Mortgagor a formal notice of
expiration of any such insurance in sufficient time for the Mortgagor to arrange
for renewal coverage by the expiration date.
Pursuant
to Section 3.04, any amounts collected by the Servicer under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with Accepted Servicing Practices) shall be deposited in the
Custodial Account subject to withdrawal pursuant to Section 3.05.
Notwithstanding
anything set forth in the preceding paragraph, the Servicer agrees to indemnify
the Trustee, the Certificateholders, the Master Servicer and the Trust Fund
for
any claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and any other costs, fees
and
expenses that any such indemnified party may sustain in any way related to
the
failure of the Mortgagor (or the Servicer) to maintain hazard insurance or
flood
insurance with respect to the related Mortgaged Property which complies with
the
requirements of this section.
-22-
Section
3.13. Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy issued by
an
insurer acceptable to Xxxxxx Xxx and/or Xxxxxxx Mac insuring against losses
arising from fire and hazards covered under extended coverage on all of the
Mortgage Loans, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Section 3.12 and otherwise complies
with all other requirements of Section 3.12, it shall conclusively be deemed
to
have satisfied its obligations as set forth in Section 3.12. Any amounts
collected by the Servicer under any such policy relating to a Mortgage Loan
shall be deposited in the Custodial Account subject to withdrawal pursuant
to
Section 3.05. Such policy may contain a deductible clause, in which case, in
the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 3.12, and there shall have been a
loss
which would have been covered by such policy, the Servicer shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
deposited from the Servicer’s funds, without reimbursement therefor. Upon
request of the Master Servicer, the Servicer shall cause to be delivered to
such
person a certificate of insurance of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days’ prior written notice to the Master Servicer
and the Trustee.
Section
3.14. Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Servicer shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an errors and omissions insurance policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Mortgage Loans (“Servicer
Employees”).
Any
such Fidelity Bond and errors and omissions insurance policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond
and errors and omissions insurance policy also shall protect and insure the
Servicer against losses in connection with the failure to maintain any insurance
policies required pursuant to this Agreement and the release or satisfaction
of
a Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 3.14 requiring such Fidelity
Bond
and errors and omissions insurance policy shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to
the
corresponding amounts required by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx’ &
Servicers’ Guide, or as otherwise acceptable to Xxxxxxx Mac. Upon the request of
the Master Servicer, the Servicer shall cause to be delivered to such party
a
certificate of insurance for such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without 30 days’
prior written notice to the Master Servicer and the Trustee. The Servicer shall
notify the Master Servicer and the Trustee within five Business Days of receipt
of notice that such Fidelity Bond or insurance policy will be, or has been,
materially modified or terminated. The Master Servicer and the Trustee shall
be
named as loss payees on the Fidelity Bond and as additional insured on the
errors and omissions policy.
-23-
Section
3.15. Maintenance
of PMI and/or LPMI Policy; Claims.
(a) The
Servicer shall comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums with respect to,
PMI
Policies, including but not limited to the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as amended
from time to time. The Servicer shall be obligated to make premium payments
with
respect to PMI Policies required to be maintained by the Mortgagor rather than
the Seller, if the Mortgagor is required but fails to pay any PMI Policy
premium, which shall be paid from the Servicer’s own funds. The Servicer shall
not be required to make any premium payments with respect to LPMI Policies.
Any
premium payments made by the Servicer from its own funds pursuant to this
Section 3.15(a) shall be recoverable by the Servicer as a Servicing Advance,
subject to the reimbursement provisions of Section 3.05(iii).
With
respect to each first lien Mortgage Loan (other than LPMI Loans) with a
Loan-to-Value Ratio at origination in excess of 80%, the Servicer shall maintain
or cause the Mortgagor to maintain (to the extent that the Mortgage Loan
requires the Mortgagor to maintain such insurance) in full force and effect
a
PMI Policy, and shall pay or shall cause the Mortgagor to pay the premium
thereon on a timely basis, until the Loan-to-Value Ratio of such Mortgage Loan
is reduced to 80% or less or the PMI Policy is otherwise terminated pursuant
to
the Homeowners Protection Act of 1998, 12 USC §4901, et seq. The Servicer shall
not cancel or refuse to renew any Primary Mortgage Insurance Policy in effect
on
the Closing Date that is required to be kept in force under this Agreement
unless a replacement Primary Mortgage Insurance Policy for such canceled or
non-renewed policy is obtained from and maintained with a Qualified Insurer.
In
the event that such PMI Policy shall be terminated, the Servicer shall obtain
from another Qualified Insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated PMI Policy, at
substantially the same fee level. The Servicer shall not take any action that
would result in noncoverage under any applicable PMI Policy of any loss that,
but for the actions of the Servicer would have been covered thereunder. In
connection with any assumption or substitution agreements entered into or to
be
entered into with respect to a Mortgage Loan, the Servicer shall promptly notify
the insurer under the related PMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy and
shall take all actions that may be required by such insurer as a condition
to
the continuation of coverage under such PMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Servicer shall obtain a replacement PMI Policy as provided above.
(b) With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the
Servicer shall take all such actions on behalf of the Trustee as are necessary
to service, maintain and administer the related Mortgage Loan in accordance
with
such Policy and to enforce the rights under such Policy. Except as expressly
set
forth herein, the Servicer shall have full authority on behalf of the Trust
Fund
to do anything it deems appropriate or desirable in connection with the
servicing, maintenance and administration of such Policy, provided
that
the
Servicer shall not take any action to permit any modification or assumption
of a
Mortgage Loan covered by an LPMI Policy or PMI Policy, or take any other action
with respect to such Mortgage Loan, that would result in non-coverage under
such
Policy of any loss which, but for actions of any Servicer or the Subservicer,
would have been covered thereunder. If the Qualified Insurer fails to pay a
claim under an LPMI Policy or PMI Policy solely as a result of a breach by
the
Servicer or Subservicer of its obligations hereunder or under such Policy,
the
Servicer shall be required to deposit in the Custodial Account on or prior
to
the next succeeding Remittance Date an amount equal to such unpaid claim from
its own funds without any rights to reimbursement from the Trust Fund. The
Servicer shall cooperate with the Qualified Insurers and shall furnish all
reasonable evidence and information in the possession of the Servicer to which
the Servicer has access with respect to the related Mortgage Loan.
-24-
(c) In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Trustee, claims to the insurer under any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy or LPMI Policy and, in this regard, to take such action as
shall
be necessary to permit recovery under any PMI Policy or LPMI Policy respecting
a
defaulted Mortgage Loan. Any amounts collected by the Servicer under any PMI
Policy or LPMI Policy shall be deposited in the Custodial Account pursuant
to
Section 3.04(xiv), subject to withdrawal pursuant to Section 3.05.
(d) Upon
request by the Servicer, the Trustee shall furnish the Servicer with any powers
of attorney and other documents (within three Business Days upon request from
the Servicer) in form as provided to it by the Servicer (and mutually acceptable
to the Trustee and the Servicer) necessary or appropriate to enable the Servicer
to service and administer any PMI or LPMI Policy; provided,
however,
that the
Trustee shall not be liable for the actions of the Servicer under such power
of
attorney unless such actions of the Servicer are performed at, and in accordance
with, the written direction of the Trustee.
(e) Notwithstanding
the provisions of (a) and (b) above, the Servicer shall not take any action
in
regard to any PMI Policy or LPMI Policy inconsistent with the interests of
the
Trustee or the Certificateholders or with the rights and interests of the
Trustee or the Certificateholders under this Agreement.
Section
3.16. Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure, by deed
in lieu of foreclosure or other method resulting in full or partial satisfaction
of the related Mortgage, the deed or certificate of sale shall be taken in
the
name of the Trustee or its nominee in trust for the benefit of the
Certificateholders, or in the event the Trustee is not authorized or permitted
to hold title to real property in the state where the REO Property is located,
or would be adversely affected under the “doing business” or tax laws of such
state by so holding title, the deed or certificate of sale shall be taken in
the
name of such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by the Servicer from any attorney duly licensed to practice law in
the
state where the REO Property is located. The Person or Persons holding such
title other than the Trustee shall acknowledge in writing that such title is
being held as nominee for the Trustee. The Trustee’s name shall be placed on the
title to such REO Property solely as the Trustee under the Pooling and Servicing
Agreement and not in its individual capacity. The Servicer shall ensure that
the
title to such REO Property references the Pooling and Servicing Agreement and
the Trustee’s capacity thereunder.
-25-
The
Servicer shall notify the Master Servicer in accordance with the Xxxxxxx Mac
Guides of each acquisition of REO Property upon such acquisition, together
with
a copy of the drive-by appraisal or brokers price opinion of the Mortgaged
Property obtained in connection with such acquisition, and thereafter assume
the
responsibility for marketing such REO Property in accordance with Accepted
Servicing Practices. Thereafter, the Servicer shall continue to provide certain
administrative services to the Purchaser relating to such REO Property as set
forth in this Section 3.16.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Trustee solely for the purpose of its prompt disposition and sale. The Servicer,
either itself or through an agent selected by the Servicer, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Servicer shall cause each REO Property to
be
inspected promptly upon the acquisition of title thereto and shall cause each
REO Property to be inspected at least monthly thereafter or more frequently
as
required by the circumstances. The Servicer shall make or cause to be made
a
written report of each such inspection. Such reports shall be retained in the
Servicing File and copies thereof shall be forwarded by the Servicer to the
Master Servicer. The Servicer shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Trustee and the Certificateholders.
The
Servicer also shall maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required in Section
3.12.
In
the
event that the Trust Fund acquires any REO Property in connection with a default
or imminent default on a Mortgage Loan, the Servicer shall dispose of such
REO
Property not later than the end of the third taxable year after the year of
its
acquisition by the Trust Fund unless the Servicer has applied for and received
a
grant of extension from the Internal Revenue Service (and provide a copy of
the
same to the Master Servicer) to the effect that, under the REMIC Provisions
and
any relevant proposed legislation and under applicable state law, the applicable
Trust REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the imposition of a federal
or state tax upon such REMIC. If the Servicer has received such an extension
(and provided a copy of the same to the Master Servicer), then the Servicer
shall continue to attempt to sell the REO Property for its fair market value
for
such period longer than three years as such extension permits (the “Extended
Period”). If the Servicer has not received such an extension and the Servicer is
unable to sell the REO Property within the period ending three months before
the
end of such third taxable year after its acquisition by the Trust Fund, or
if
the Servicer has received such an extension and the Servicer is unable to sell
the REO Property within the period ending three months before the close of
the
Extended Period, the Servicer shall, before the end of the three-year period
or
the Extended Period, as applicable, (i) purchase such REO Property at a price
equal to the REO Property’s fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be. The Trustee shall sign any
document or take any other action reasonably requested by the Servicer that
would enable the Servicer, on behalf of the Trust Fund, to request such grant
of
extension.
-26-
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such
taxes.
The
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Trust Fund. Notwithstanding the previous sentence, prior to
acceptance by the Servicer of an offer to sell any REO Property for a sale
price
that is less than 90% of the unpaid principal balance of the related Mortgage
Loan, the Servicer shall notify the Master Servicer of such offering in writing
which notification shall set forth all material terms of said offer (each a
“Notice of Sale”). The Master Servicer shall be deemed to have approved the sale
of any REO Property unless it notifies the Servicer in writing within five
Business Days after its receipt of the related Notice of Sale, that it
disapproves of the related sale, in which case the Servicer shall not proceed
with such sale.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed advances
made pursuant to this Section or Section 4.03.
The
Servicer shall make advances of all funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 3.12, such advances to
be
reimbursed from the disposition or liquidation proceeds of the REO Property.
The
Servicer shall make monthly distributions on each Remittance Date to the Master
Servicer of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
3.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section
3.17. Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish to the Master Servicer on or before the Remittance Date in each month
a
statement with respect to any REO Property covering the operation of such REO
Property for the previous month and the Servicer’s efforts in connection with
the sale of such REO Property and any rental of such REO Property incidental
to
the sale thereof for the previous month. That statement shall be accompanied
by
such other information as either the Master Servicer shall reasonably
request.
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Section
3.18. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Trustee pursuant to a deed in lieu of foreclosure, the Servicer shall submit
to
the Trustee, the Trust Administrator and the Master Servicer a liquidation
report with respect to such Mortgaged Property. In addition, the Servicer shall
provide the Master Servicer a report setting forth Servicing Advances and other
expenses incurred in connection with the liquidation of any Mortgage
Loan.
Section
3.19. Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Servicer
shall report such foreclosure or abandonment as required pursuant to Section
6050J of the Code.
Section
3.20. Prepayment
Penalties.
The
Servicer or any designee of the Servicer shall not waive any Prepayment Penalty
with respect to any Mortgage Loan containing a Prepayment Penalty that prepays
during the term of the charge. If the Servicer or its designee fails to collect
the Prepayment Penalty upon any prepayment of any Mortgage Loan that contains
a
Prepayment Penalty, the Servicer shall pay the Trust Fund at such time (by
deposit to the Custodial Account) an amount equal to amount of the Prepayment
Penalty that was not collected. Notwithstanding the above, the Servicer or
its
designee may waive (and shall waive, in the case of (ii)(b) and (c) below)
a
Prepayment Penalty without paying the Trust Fund the amount of the Prepayment
Penalty if (i) the Mortgage Loan is in default (defined as 61 days or more
delinquent) and such waiver would maximize recovery of total proceeds taking
into account the value of such Prepayment Penalty and the related Mortgage
Loan
or (ii) the prepayment is not a result of a refinance by the Servicer or any
of
its affiliates and (a) the Mortgage Loan is foreseen to be in default and such
waiver would maximize recovery of total proceeds taking into account the value
of such Prepayment Penalty and the related Mortgage Loan, (b) the collection
of
the Prepayment Penalty would be in violation of applicable laws or (c)
notwithstanding any state or federal law to the contrary, in any instance when
a
Mortgage Loan is in foreclosure.
Section
3.21. Confidentiality/Protecting
Customer Information.
Each
party agrees that it shall comply with all applicable laws and regulations
regarding the privacy or security of Customer Information and shall maintain
appropriate administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of Customer Information including,
if
applicable, maintaining security measures designed to meet the Interagency
Guidelines Establishing Standards for Safeguarding Customer Information, 66
Fed.
Reg. 8616 and complying with the privacy regulations under Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. § 6801 et seq., and the rules promulgated
thereunder. For purposes of this Section 3.21, “Customer Information” means any
personal information concerning a Mortgagor that is disclosed by one party
to
this Agreement to the other.
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Section
3.22. Credit
Reporting.
For
each Mortgage Loan, the Servicer has and shall continue to accurately and fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to each of the following credit repositories:
Equifax Credit Information Services, Inc., Trans Union, LLC and Experian
Information Solution, Inc., on a monthly basis.
Section
3.23. Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Servicer shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date,
if
required under applicable law.
ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
Section
4.01. Remittances.
On
each
Remittance Date, no later than 4:00 p.m. New York City time, the Servicer shall
remit on a scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the Custodial Account
as of the close of business on the last day of the related Due Period (net
of
charges against or withdrawals from the Custodial Account pursuant to Section
3.05), plus
(b) all
Monthly Advances, if any, that the Servicer is obligated to make pursuant to
Section 4.03, minus
(c) any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after
the
applicable Principal Prepayment Period, which amounts shall be remitted on
the
following Remittance Date, together with any additional interest required to
be
deposited in the Custodial Account in connection with such Principal Prepayment
in accordance with Section 3.04 (viii), and minus
(d) any
amounts attributable to Monthly Payments collected but due on a Due Date or
Due
Dates subsequent to the first day of the month in which such Remittance Date
occurs, which amounts shall be remitted on the Remittance Date next succeeding
the Due Date related to such Monthly Payment.
With
respect to any remittance received by the Master Servicer after the Business
Day
on which such payment was due, the Servicer shall pay to the Master Servicer
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
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
Servicer on the date such late payment is made and shall cover the period
commencing with the day following such Business Day and ending with the Business
Day on which such payment is made, both inclusive. Such interest shall be
remitted along with the distribution payable on the next succeeding Remittance
Date. The payment by the Servicer of any such interest shall not be deemed
an
extension of time for payment or a waiver by the Trustee or the Master Servicer
of any Event of Default.
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All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
Xxxxx
Fargo Bank, N.A.
San
Francisco, California
ABA#:
000-000-000
Account
Name: Corporate Trust Clearing
Account
Number: 0000000000
Beneficiary:
Xxxxx Fargo Bank, N.A.
For
further credit to: 53155800, TBW 2007-2
Section
4.02. Statements
to Master Servicer.
(a) Not
later
than the tenth Business Day of each month, the Servicer shall furnish to the
Master Servicer an electronic monthly
remittance advice in the format attached hereto as Exhibit N, the default loan
data attached hereto as Exhibit M and information regarding realized losses
and
gains in the format attached hereto as Exhibit L, such advice relating to the
period ending on the last day of the preceding calendar month, and
a
monthly loan loss report in the format set forth in Exhibit E hereto;
provided,
however,
the
information provided pursuant to Exhibit E shall be limited to that which is
readily available to the Servicer and is mutually agreed to between the Servicer
and the Master Servicer. The
format of this monthly reporting may be amended from time to time to the extent
necessary to comply with applicable law. In connection with prepayments in
full,
the Servicer will use its best efforts to deliver to the Master Servicer by
the
15th
calendar
day of each month, but in no event later than the 17th
day of
each month, a monthly payoff remittance advice.
Such
monthly remittance advice shall also be accompanied by a supplemental report
provided to the Master Servicer, the Trust Administrator and the Seller that
includes on an aggregate basis for the previous Due Period (i) the amount of
claims filed on any LPMI Policy, (ii) the amount of any claim payments made
on
any LPMI Policy, (iii) the amount of claims denied or curtailed on any LPMI
Policy and (iv) policies cancelled with respect to those Mortgage Loans covered
by any LPMI Policy purchased by the Seller on behalf of the Trust Fund.
In
addition, with respect to any Mortgage Loan that has been modified, the
Servicer
shall provide the following information:
|
i.
|
the
Credit Suisse Loan Number of such Mortgage Loan;
|
|
ii.
|
the
Loan Group of such Loan;
|
|
iii.
|
the
date such Mortgage Loan was modified;
|
|
iv.
|
the
pre- and post-modification Stated Principal Balance of such Mortgage
Loan;
|
|
v.
|
the
pre- and post-modification Net Mortgage Rate of such Mortgage Loan;
|
|
vi.
|
the
pre- and post-modification scheduled monthly payment of such Mortgage
Loan;
|
|
vii.
|
the
pre- and post-modification number of days such Mortgage Loan has
been
delinquent;
|
|
viii.
|
the
pre- and post-modification scheduled maturity date of such Mortgage
Loan;
|
|
ix.
|
the
pre- and post-modification balloon amount of such Mortgage Loan;
and
|
|
x.
|
the
pre- and post-modification status of such Mortgage
Loan.
|
(b) The
Servicer shall prepare and file any and all usual and customary tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority, the Trust Administrator or its designee pursuant
to any applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Servicer shall provide the Trust
Administrator with such information concerning the Mortgage Loans as is
necessary for such Trust Administrator to prepare federal income tax returns
as
the Trust Administrator may reasonably request from time to time. Such
obligation of the Servicer shall be deemed satisfied to the extent that
substantially comparable information has been provided by the Servicer
throughout the calendar year.
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(c) If
requested by the Master Servicer or the Depositor, the
Servicer shall promptly notify the Master Servicer and the Depositor (i) of
any
legal proceedings pending against the Servicer of the type described in Item
1117 (§
229.1117) of
Regulation AB and (ii) if the Servicer shall become (but only to the extent
not
previously disclosed to the Master Servicer and the Depositor) at any time
an
affiliate of any of the parties listed on Exhibit I to this
Agreement.
For
the
purpose of satisfying the reporting obligations under the Exchange Act with
respect to the issuance of asset-backed securities, the Servicer shall provide
to the
Master Servicer and the Depositor
prompt
notice of the occurrence of any of the following: any event of default under
the
terms of this Agreement; any merger, consolidation or sale of substantially
all
of the assets of the Servicer; the Servicer’s engagement of any Subservicer,
Subcontractor or vendor to perform or assist in the performance of any of the
Servicer’s obligations under this Agreement; any material litigation involving
the Servicer; and any affiliation or other significant relationship between
the
Servicer and other transaction parties.
(d) Not
later
than the tenth Business Day of each month, the Servicer shall provide to the
Master Servicer and the Depositor notice of the occurrence of any material
modifications, extensions or waivers of terms, fees, penalties or payments
relating to the Mortgage Loans during the related Due Period.
Section
4.03. Monthly
Advances by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held for
future distribution, or both, an amount equal to all Monthly Advances with
respect to such Remittance Date. Any amounts held for future distribution and
so
used shall be replaced by the Servicer by deposit in the Custodial Account
on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than remittances to the Master Servicer required
to be made on such Remittance Date. The Servicer shall keep appropriate records
of such amounts and shall provide such records to the Master Servicer upon
reasonable request.
The
Servicer’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date for the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with respect
to the related Mortgage Loan.
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Section
4.04. Due
Dates Other Than the First of the Month.
Mortgage
Loans having Due Dates other than the first day of a month shall be accounted
for as described in this Section 4.04. Any payment due on a day other than
the
first day of each month shall be considered due on the first day of the month
following the month in which that payment is due as if such payment were due
on
the first day of said month. For example, a payment due on January 15 shall
be
considered to be due on February 1 of said month. Any payment collected on
a
Mortgage Loan after the Cut-off Date shall be deposited in the Custodial
Account. For Mortgage Loans with Due Dates on the first day of a month, deposits
to the Custodial Account begin with the payment due on the first of the month
following the Cut-off Date.
ARTICLE
V.
SERVICING
PROCEDURES
Section
5.01. Transfers
of Mortgaged Property.
The
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer shall, to the extent
it has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto; provided,
however,
that
the Servicer shall not exercise such rights if prohibited by law from doing
so
or if the exercise of such rights would impair or threaten to impair any
recovery under the related PMI Policy or LPMI Policy, if any.
If
the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Servicer
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the seller
of the Mortgaged Property pursuant to which the original Mortgagor is released
from liability and the seller of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. If an assumption fee
is
collected by the Servicer for entering into an assumption agreement, such fee
shall be retained by the Servicer as additional servicing compensation. In
connection with any such assumption, none of the Mortgage Interest Rate borne
by
the related Mortgage Note, the term of the Mortgage Loan or the outstanding
principal amount of the Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
that are used by the Servicer, its affiliates or Xxxxxxx Mac with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria,
the
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
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Notwithstanding
the foregoing paragraphs of this Section 5.01 or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of
a
Mortgage Loan by operation of law or any assumption that the Servicer may be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 5.01, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
5.02. Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer shall notify the Master Servicer in the Monthly
Remittance Advice as provided in Section 4.02, and may request the release
of any Mortgage Loan Documents from the Seller in accordance with this
Section 5.02. If such Mortgage Loan is a MERS Mortgage Loan, the Servicer
is authorized to cause the removal from the registration on the MERS System
of
such Mortgage and to execute and deliver, on behalf of the Purchaser, any and
all instruments of satisfaction or cancellation or of partial or full release.
No expense incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the Custodial Account.
If
the
Servicer satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Servicer
otherwise prejudice any rights the Seller, the Trustee or the Trust Fund may
have under the Mortgage, the Servicer shall deposit into the Custodial Account
the entire outstanding principal balance, plus
all
accrued interest on such Mortgage Loan, on the day preceding the Remittance
Date
in the month following the date of such release. The Servicer shall maintain
the
Fidelity Bond and errors and omissions insurance policy as provided for in
Section 3.14 insuring the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
Section
5.03. Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement, the
Servicer shall retain the relevant Servicing Fee for each Mortgage Loan
remaining subject to this Agreement during any month or part thereof. Such
Servicing Fee shall be payable monthly. Additional servicing compensation,
assumption fees as provided in Section 5.01, and late payment charges or
otherwise shall be retained by the Servicer and is not required to be deposited
in the Custodial Account. The obligation of the Seller to pay the Servicing
Fee
is limited to, and the Servicing Fee is payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds) of such Monthly Payment collected by the Servicer. The
aggregate Servicing Fees for any month with respect to the Mortgage Loans shall
be reduced by the aggregate Prepayment Interest Shortfall Amount for such month.
The Servicer shall be entitled to recover any unpaid Servicing Fee, to the
extent not remitted, out of Insurance Proceeds, Condemnation Proceeds, REO
Disposition Proceeds or Liquidation Proceeds or other amounts on deposit in
the
Custodial Account, to the extent permitted in Section 3.05 and out of amounts
derived from the operation and sale of an REO Property to the extent permitted
by Section 3.16.
-33-
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
Section
5.04. Servicer
Compliance Statement..
On
or
before March 1st of each calendar year, commencing in 2008, the Servicer shall
deliver to the Master Servicer and the Depositor a Servicing Officer’s
certificate in the form of Exhibit J hereto, addressed to the Master Servicer
and the Depositor and signed by an authorized Servicing Officer, to the effect
that (i) a review of the Servicer’s activities during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under
this
Agreement during such period has been made under such Servicing Officer’s
supervision, and (ii) to the best of such Servicing Officer’s knowledge, based
on such review, the Servicer has fulfilled all of its obligations under this
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.
Section
5.05. Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 1st of each calendar year, commencing in 2008, the Servicer
shall:
(i) deliver
to the Master Servicer and the Depositor a report (in form and substance
reasonably satisfactory to the Master Servicer and the Depositor) regarding
the
Servicer’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 Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item
1122 of Regulation AB. Such report shall be addressed to the Master Servicer
and
the Depositor and signed by an authorized officer of the Servicer, and shall
address all of the Servicing Criteria specified in Exhibit H;
(ii) deliver
to the Master Servicer and the Depositor a report of a registered public
accounting firm reasonably acceptable to the Master Servicer and the Depositor
that attests to, and reports on, the assessment of compliance made by the
Servicer 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 of 1933, as amended (the “Securities Act”) and the Exchange
Act;
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(iii) cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant
to
Section 7.04(c) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB and for which the Servicer does not elect
to take responsibility for assessing compliance with the Servicing Criteria
in
accordance with Regulation AB Telephone Interpretation 17.06, to deliver to
the
Master Servicer and the Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Section;
and
(iv) not
later
than February 28th of the calendar year in which such certification is to be
delivered, deliver to the Master Servicer, the Depositor 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 (“Xxxxxxxx-Xxxxx”))
on behalf of the Trust Fund with respect to the transaction relating to this
Agreement a certification in the form attached hereto as Exhibit F.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Master Servicer nor the Depositor will request delivery of a certification
under clause (a)(iv) above unless a Depositor is required under the Exchange
Act
to file an annual report on Form 10-K with respect to the Trust
Fund.
(b) In
the
case of a Subservicer appointed subsequent to this Agreement, each assessment
of
compliance provided by a Subservicer pursuant to Section 5.05(a)(i) shall
address all of the Servicing Criteria specified in Exhibit H hereto on or prior
to the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 5.05(a)(iii) need not address any elements
of
the Servicing Criteria other than those specified by the Servicer pursuant
to
Section 7.04.
Section
5.06. Inspection.
The
Servicer shall provide the Trustee, the Trust Administrator and the Master
Servicer, upon reasonable advance notice, during normal business hours, access
to all records maintained by the Servicer in respect of its rights and
obligations hereunder and access to officers of the Servicer responsible for
such obligations. Upon request, the Servicer shall furnish to the Trust
Administrator and the Master Servicer its most recent publicly available
financial statements and such other information relating to its capacity to
perform its obligations under this Agreement.
-35-
ARTICLE
VI.
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
Section
6.01. Representations,
Warranties and Agreements of the Servicer.
The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the Seller,
the Master Servicer, the Depositor, the Trust Administrator and the Trustee,
as
of the Closing Date:
(a) The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry out its business as now being conducted, and is licensed
and
qualified to transact business in and is in good standing under the laws of
each
state in which any Mortgaged Property is located or is otherwise exempt under
applicable law from such licensing or qualification or is otherwise not required
under applicable law to effect such licensing or qualification and no demand
for
such licensing or qualification has been made upon the Servicer by any such
state, and in any event the Servicer is in compliance with the laws of any
such
state to the extent necessary to ensure the enforceability of each Mortgage
Loan
and the servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(b) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(c) Neither
the execution and delivery of this Agreement, the carrying out of the servicing
responsibilities by the Servicer or the transactions contemplated hereby, nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s charter or by-laws or materially
conflict with or result in a material breach of any of the terms, conditions
or
provisions of any legal restriction or any agreement or instrument to which
the
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the material
violation of any law, rule, regulation, order, judgment or decree to which
the
Servicer or its property is subject, or impair the ability of the Servicer
to
service the Mortgage Loans, or impair the value of the Mortgage
Loans;
(d) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(e) There
is
no litigation, suit, proceeding or investigation pending or threatened against
the Servicer, or any order or decree outstanding, that is reasonably likely
to
have a material adverse effect on the execution, delivery, performance or
enforceability of this Agreement, or that is reasonably likely to have a
material adverse effect on the financial condition of the Servicer;
(f) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement, or if required, such approval
has been obtained prior to the Closing Date;
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(g) The
Servicer is an approved seller/servicer of residential mortgage loans for
Xxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary
for the sound servicing of such mortgage loans. The Servicer is duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws, and regulations, meets the minimum capital requirements,
if applicable, set forth by the Office of the Comptroller of the Currency,
and
is in good standing to sell mortgage loans to and service mortgage loans for
Xxxxxxx Mac and no event has occurred which would make the Servicer unable
to
comply with eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac;
(h) Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not misleading;
(i) The
Servicer has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Seller; and
(j) The
Servicer has fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories) on
a
monthly basis.
(k) Except
as
disclosed in writing to the Seller, the Master Servicer, the Depositor, the
Trust Administrator and the Trustee prior to the Closing Date: (i)
the Servicer 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 Servicer; (ii)
the
Servicer 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; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as servicer
has been disclosed or reported by the Servicer; (iv) no material
changes to the Servicer’s policies or procedures with respect to the servicing
function it will perform under this Agreement for mortgage loans of a type
similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the Closing
Date; (v) there are no aspects of the Servicer’s financial condition that could
have a material adverse effect on the performance by the
Servicer of its servicing obligations under this Agreement
and (vi) there are no affiliations, relationships or transactions relating
to
the Servicer or any Subservicer with any party listed on Exhibit I hereto of
a
type described in Item 1119 of Regulation AB.
(l) The
Servicer shall retain and act as custodian for, with regard to each Mortgage
Loan, any title insurance documents and the mortgage insurance
documents.
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Section
6.02. Remedies
for Breach of Representations and Warranties of the Servicer.
(a) It
is
understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the engagement of the Servicer to perform the
servicing responsibilities as of the related Closing Date or Servicing Transfer
Date, as applicable, hereunder and the delivery of the Servicing Files to the
Servicer and shall inure to the benefit of the Seller, Master Servicer, the
Depositor, the Trust Administrator and the Trustee. Upon discovery by either
the
Servicer, the Master Servicer, the Seller, the Depositor or the Trust
Administrator of a breach of any of the foregoing representations and warranties
that materially and adversely affects the ability of the Servicer to perform
its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property or
the
priority of the security interest on such Mortgaged Property or the interests
of
the Master Servicer or the Trustee, the party discovering such breach shall
give
prompt written notice to the others.
(b) Within
60
days of the earlier of either discovery by or notice to the Servicer of any
breach of a representation or warranty set forth in Section 6.01 that materially
and adversely affects the ability of the Servicer to perform its duties and
obligations under this Agreement or otherwise materially and adversely affects
the value of the Mortgage Loans, the Mortgaged Property or the priority of
the
security interest on such Mortgaged Property, the Servicer shall use its best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Servicer shall, at the Master Servicer’s option,
assign the Servicer’s rights and obligations under this Agreement (or respecting
the affected Mortgage Loans) to a successor servicer. Such assignment shall
be
made in accordance with Section 9.01.
(c) If
so requested by the Master Servicer or the Depositor on any date following
the
date
on which information is first provided to the Master
Servicer
or the
Depositor,
the Servicer shall, within five Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in Section
6.01(k) 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.
(d) In
addition, the Servicer shall indemnify the Seller, the Master Servicer, the
Trust Administrator and the Trustee (and each of their respective directors,
officers, employees and agents) and the Trust Fund, and hold each of them
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Servicer’s representations and
warranties contained in Section 6.01.
(e) Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 6.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Master
Servicer, the Seller, the Depositor or the Trust Administrator to the Servicer,
(ii) failure by the Servicer to cure such breach within the applicable cure
period, and (iii) demand upon the Servicer by the Master Servicer for compliance
with this Agreement.
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Section
6.03. Additional
Indemnification by the Servicer.
(a) The
Servicer shall indemnify DLJ Mortgage Capital, Inc., the Master Servicer, the
Trust Administrator, each broker dealer acting as underwriter, placement agent
or initial purchaser, each Person who controls any of such parties and 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 and agents of each of the foregoing and of the Depositor, 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:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under Sections 4.02(c) or (d), 5.04,
5.05, 6.01 or 7.04 by or on behalf of the Servicer, or provided under Sections
4.02(c) or (d), 5.04, 5.05, 6.01 or 7.04 by or on behalf of any Subservicer
or
Subcontractor (collectively, the “Servicer Information”), or (B) the omission or
alleged omission to state in the Servicer Information a material fact required
to be stated in the Servicer Information or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; providing,
by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
breach by the Servicer of its obligations under this Section 6.03, including,
any failure by the Servicer, any Subservicer or any Subcontractor to deliver
any
information, report, certification, accountants’ letter or other material when
and as required under this Sections 4.02(c) or (d), 5.04, 5.05, 6.01 or 7.04,
including any failure by the Servicer to identify pursuant to Section 7.04(c)
any Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB;
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
6.01(k) or in a writing furnished pursuant to Section 6.01(k) and made as of
a
date prior to the Closing Date, to the extent that such breach is not cured
by
the Closing Date, or any breach by the Servicer of a representation or warranty
in a writing furnished pursuant to Section 6.01(k) to the extent made as of
a
date subsequent to the Closing Date;
(iv) any
failure by the Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, including any report under Sections 5.04
or 5.05 or any failure by the Servicer to identify pursuant to Section 7.04(c)
any Subcontractor that is a Participating Entity; or
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(v) the
failure of the Servicer to perform its duties and service the Mortgage Loans
in
material compliance with the terms of this Agreement.
In
the
case of any failure of performance described in clause (a)(ii) of this Section
6.03, the Servicer shall promptly reimburse the Master Servicer, the 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
the transaction relating to this Agreement, 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 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 Servicer, any Subservicer or
any
Subcontractor.
(b) (i) Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under Sections 4.02(c) or (d), 5.04, 5.05, 6.01 or 7.04, or
any
breach by the Servicer of a representation or warranty set forth in Section
6.01(l) or in a writing furnished pursuant to Section 6.02(c) and made as of
a
date prior to the Closing Date, to the extent that such breach is not cured
by
the Closing Date, or any breach by the Servicer of a representation or warranty
in a writing furnished pursuant to Section 6.02(c) to the extent made as of
a
date subsequent to the Closing Date, shall, except as provided in clause (ii)
of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this
Agreement, and shall entitle the Master Servicer or Depositor, as applicable,
in
its sole discretion to terminate the rights and obligations of the Servicer
as
servicer under this Agreement without payment (notwithstanding anything in
this
Agreement) of any compensation to the Servicer; provided
that to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
(ii) Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 5.04 or 5.05, including (except as provided below) any failure
by
the Servicer to identify pursuant to Section 7.04(c) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten 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 Servicer under this Agreement, and shall entitle the Master Servicer or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer as servicer under this Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Servicer; provided
that to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
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Neither
the Master Servicer nor the Depositor shall be entitled to terminate the rights
and obligations of the Servicer pursuant to this subparagraph (b)(ii) if a
failure of the Servicer 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
Servicer shall promptly reimburse the Master Servicer (or any designee of the
Master Servicer, such as a master servicer) and the Depositor, as applicable,
for all reasonable expenses incurred by the Master Servicer (or such designee)
or the Depositor, as such are incurred, in connection with the termination
of
the Servicer as servicer and the transfer of servicing of the Mortgage Loans
to
a successor servicer. The provisions of this paragraph shall not limit whatever
rights the Master Servicer or the Depositor may have under other provisions
of
this Agreement or otherwise, whether in equity or at law, such as an action
for
damages, specific performance or injunctive relief.
Section
6.04. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the Holder of the related Residual Certificate, the
Master Servicer, the Trustee, the Trust Administrator (and each of their
respective directors, officers, employees and agents) and the Trust Fund against
any and all losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence; provided,
however,
that the
Servicer shall not be liable for any such Losses attributable to the action
or
inaction of the Trustee, the Trust Administrator, the Master Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Servicer has relied. The foregoing shall
not
be deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate, the Master Servicer, the Trustee, the Depositor, the
Trust
Administrator and the Trust Fund now or hereafter existing at law or in equity
or otherwise. Notwithstanding the foregoing, however, in no event shall the
Servicer have any liability (1) for any action or omission that is taken in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Servicer of its duties and
obligations set forth herein, (3) for any special or consequential damages
to
Certificateholders (in addition to payment of principal and interest on the
Certificates) and (4) if actions taken by the Servicer are at, and in accordance
with, the written request or written approval of the Master Servicer, the
Trustee or the Trust Administrator.
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Section
6.05. Reporting
Requirements of the Commission and Indemnification.
The
Servicer, the Master Servicer and the Trust Administrator acknowledge and agree
that the purpose of Sections 4.02(c) and (d), 5.04, 5.05, 6.01(l), 6.03 and
7.04
of this Agreement is to facilitate compliance by the Trust Administrator, the
Master Servicer and the Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. Neither the Master Servicer
nor
the 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 Servicer acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to
comply with requests made by the Master Servicer or the Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection
with the
transaction relating to this Agreement,
the Servicer shall cooperate fully with the Master Servicer to deliver to the
Master Servicer (including any of its assignees or designees) and the Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Master Servicer
or
the Depositor to permit the Master Servicer or the Depositor to comply with
the
provisions of Regulation AB, together with such disclosures relating to the
Servicer, any Subservicer and the Mortgage Loans, or the servicing of the
Mortgage Loans, reasonably believed by the Master Servicer or the Depositor
to
be necessary in order to effect such compliance.
The
Master Servicer (including any of its assignees or designees) shall cooperate
with the Servicer by providing timely notice of requests for information under
these provisions and by reasonably limiting such requests to information
required, in the Master Servicer’s reasonable judgment, to comply with
Regulation AB.
The
Servicer shall furnish to the Seller and its designees, during the term of
this
Agreement, at the Servicer’s expense, such periodic, special or other reports,
information or documentation, whether or not provided for herein, as the Seller
or its designees may reasonably request, including any reports, information
or
documentation reasonably required to comply with any regulations regarding
any
supervisory agents or examiners of the Seller or its designees, all such reports
or information to be as provided by and in accordance with such applicable
instructions and directions as the Seller or its designees may reasonably
request in relation to this Agreement or the performance of the Servicer under
this Agreement. The Servicer agrees to execute and deliver all such instruments
and take all such action as the Seller or its designees, from time to time,
may
reasonably request in order to effectuate the purpose and to carry out the
terms
of this Agreement.
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ARTICLE
VII.
THE
SERVICER
Section
7.01. Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign entity in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Agreement or any
of
the Mortgage Loans and to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, provided,
however,
that
the successor or surviving Person shall be an institution (i) having a net
worth
of not less than $25,000,000, and (ii) which is a Xxxxxx Xxx- or Xxxxxxx
Mac-approved servicer in good standing.
Section
7.02. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Master Servicer, the Depositor,
the
Trust Administrator or the Trustee for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided,
however,
that
this provision shall not protect the Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve
it
in any expense or liability; provided,
however,
that
the Servicer may undertake any such action which it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
hereto. In such event, the Servicer shall be entitled to reimbursement from
the
Trust Fund for the reasonable legal expenses and costs of such
action.
Section
7.03. Limitation
on Resignation and Assignment by the Servicer.
This
Agreement has been entered into with the Servicer in reliance upon the
independent status of the Servicer, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, except as expressly provided in this Section 7.03 and Sections 3.20,
7.01 and 7.04, the Servicer shall neither assign its rights under this Agreement
or the servicing hereunder nor delegate its duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets without, in each case, the prior written consent of the
Seller, the Master Servicer, the Trust Administrator and the Trustee, which
consent, in the case of an assignment of rights or delegation of duties, shall
be granted or withheld in the discretion of the Seller, the Master Servicer,
the
Trust Administrator and the Trustee which consent, in the case of a sale or
disposition of all or substantially all of the property or assets of the
Servicer, shall not be unreasonably withheld by any of them, provided
that in
each case, there must be delivered to the Seller, the Master Servicer, the
Trust
Administrator and the Trustee a letter from each Rating Agency to the effect
that such transfer of servicing or sale or disposition of assets will not result
in a qualification, withdrawal or downgrade of the then-current rating of any
of
the Certificates.
Notwithstanding the foregoing, the Servicer, without the consent of the Seller,
the Master Servicer,
the
Trust Administrator
or the Trustee may retain a Subservicer or Subcontractor to perform certain
servicing and loan administration functions, including without limitation,
hazard insurance administration, tax payment and administration, flood
certification and administration, collection services and similar functions;
provided
that the retention of such Subservicers or Subcontractors by Servicer shall
not
limit the obligation of the Servicer to service the Mortgage Loans pursuant
to
the terms and conditions of this Agreement.
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The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Servicer, the Master Servicer, the Trust
Administrator and the Trustee or upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such
effect delivered to the Seller, the Master Servicer, the Trust Administrator
and
the Trustee, which Opinion of Counsel shall be in form and substance reasonably
acceptable to each of them. No such resignation shall become effective until
a
successor shall have assumed the Servicer’s responsibilities and obligations
hereunder in the manner provided in Section 8.01.
Without
in any way limiting the generality of this Section 7.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell or
otherwise dispose of all or substantially all of its property or assets, except
to the extent permitted by and in accordance with this Section 7.03 and Sections
7.01 and 7.04, without the prior written consent of the Seller, the Master
Servicer, the Trust Administrator and the Trustee, then such parties shall
have
the right to terminate this Agreement upon notice given as set forth in Section
8.01, without any payment of any penalty or damages and without any liability
whatsoever to the Servicer or any third party.
Section
7.04. Subservicing
Agreements and Successor Subservicer.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph (b) of this
Section 7.04 and the proposed Subservicer (i) is an institution that is an
approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated in writing
and
(ii) represents and warrants that it is in compliance with the laws of each
state as necessary to enable it to perform its obligations under such
subservicing agreement. The Servicer shall not hire or otherwise utilize the
services of any Subcontractor, and shall not permit any Subservicer to hire
or
otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Servicer as servicer under this Agreement unless the Servicer
complies with the provisions of paragraph (c) of this Section 7.04.
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(b) It
shall
not be necessary for the Servicer to seek the consent of the Master Servicer
and
the Depositor to the utilization of any Subservicer. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on Mortgage
Loans immediately upon receipt by any Subservicer of such payments. Each
subservicing agreement shall provide that a successor Servicer shall have the
option to terminate such agreement without payment of any fees if the
predecessor Servicer is terminated or resigns. The Servicer shall cause any
Subservicer used by the Servicer (or by any Subservicer) to comply with the
provisions of this Section 7.04 and with Sections 4.02(c), 5.04, 5.05(a),
5.05(b) (and shall amend, with the consent of the parties hereto, Exhibit H
to
reflect such Subservicer’s assessment and attestation of compliance with the
Servicing Criteria), 6.01(l) and 6.03 and Exhibit H of this Agreement to the
same extent as if such Subservicer were the Servicer. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Master
Servicer and the Depositor any servicer compliance statement required to be
delivered by such Subservicer under Section 5.04, any reports on assessment
of
compliance and attestation required to be delivered by such Subservicer under
Section 5.05 and any certification required to be delivered under 5.05 to the
Person that will be responsible for signing the Sarbanes Certification under
Section 5.05 as and when required to be delivered hereunder.
(c) It
shall
not be necessary for the Servicer to seek the consent of the Master Servicer
and
the Depositor to the utilization of any Subcontractor. The Servicer shall
promptly upon request provide the Master Servicer and the Depositor a written
description (in form and substance satisfactory to the Master Servicer and
the
Depositor) of the role and function of each Subcontractor utilized by the
Servicer or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the servicing criteria set forth under
Item
1122(d) of Regulation AB 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 a
Participating Entity, the Servicer shall cause any such Subcontractor used
by
the Servicer (or by any Subservicer) for the benefit of the Master Servicer
and
the Depositor to comply with the provisions of Sections 4.02(c), 5.04, 5.05,
6.01(l) and 6.03 and Exhibit H of this Agreement to the same extent as if such
Subcontractor were the Servicer. The Servicer shall be responsible for obtaining
from each Subcontractor and delivering to Master Servicer and the Depositor
any
assessment of compliance and attestation required to be delivered by any
Subcontractor for which the Servicer does not elect to take responsibility
for
assessing compliance in accordance with Regulation AB Telephone Interpretation
17.06 under Sections 5.04 and 5.05, in each case as and when required to be
delivered.
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ARTICLE
VIII.
TERMINATION
Section
8.01. Termination
for Cause.
(a) Any
of
the following occurrences shall constitute an event of default (each, an “Event
of Default”) on the part of the Servicer:
(i) any
failure by the Servicer to remit to the Master Servicer any payment required
to
be made under the terms of this Agreement which continues unremedied for a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Master Servicer; or
(ii) any
failure by the Servicer to duly perform, within the required time period, its
obligations to provide any certifications required pursuant to Sections 5.04
or
5.05 (including with respect to such certifications required to be provided
by
any Subservicer or Subcontractor pursuant to Section 7.04), except as provided
below, which failure continues unremedied for a period of ten days from the
date
of delivery required with respect to such certification; or
(iii) except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, its obligations
to
provide any other information, data or materials required to be provided
hereunder pursuant to Sections 4.02(c), 4.02(d), 6.01(l) and 7.04 (except as
provided below), including any items required to be included in any Exchange
Act
report; or
(iv) failure
on the part of the Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Servicer set forth
in this Agreement, or if any of the representations and warranties of the
Servicer in Section 6.01 proves to be untrue in any material respect, which
failure or breach continues unremedied for a period of 30 days (except that
such
number of days shall be 15 in the case of a failure to pay any premium for
any
insurance policy required to be maintained under this Agreement) after the
date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Purchaser; or
(v) the
Servicer ceases to be (a) licensed to service first lien residential
mortgage loans in each jurisdiction in which a Mortgaged Property is located
and
such licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Servicer’s ability to
perform its obligations hereunder; or
-46-
(vi) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60 days;
or
(vii) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
(viii) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(ix) the
Servicer ceases to be approved by Xxxxxxx Mac as a mortgage loan seller and
servicer for more than 30 days; or
(x) the
Servicer attempts to assign the servicing of the Mortgage Loans or its right
to
servicing compensation hereunder or the Servicer attempts to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in a manner not permitted under this Agreement;
or
(xi) if
(x)
any of the Rating Agencies reduces or withdraws the rating of any of the
Certificates due to a reason attributable to the Servicer or (y) either (A)
the
Servicer’s residential primary servicer rating issued by any of the Rating
Agencies is reduced to “below average” or withdrawn or (B) the Servicer’s
residential primary servicer rating is downgraded two or more levels below
the
level in effect on the Closing Date by any of the Rating Agencies;
or
(xii) the
Servicer fails to meet the eligibility criteria set forth in the second
paragraph of Section 7.01.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Master Servicer or the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Master Servicer, by notice in writing to the Servicer, may
terminate all the rights and obligations of the Servicer under this Agreement
and in and to the servicing contract established hereby and the proceeds
thereof. The rights and obligations of the Servicer pursuant to subparagraphs
(a)(ii) and (iii) above shall not be terminated if a failure of the Servicer
to
identify a Subcontractor as a Participating Entity was attributable solely
to
the role or functions of such Subcontractor with respect to mortgage loans
other
than the Mortgage Loans.
-47-
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in a successor servicer appointed by
the
Master Servicer with the consent of the Trustee. Upon written request from
the
Master Servicer, the Servicer shall prepare, execute and deliver to the
successor entity designated by the Master Servicer any and all documents and
other instruments, place in such successor’s possession all Servicing Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to
the transfer and endorsement or assignment of the Mortgage Loans and related
documents, at the Servicer’s sole expense. The Servicer shall cooperate with the
Seller, the Master Servicer, the Trustee, the Trust Administrator and such
successor in effecting the termination of the Servicer’s responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation of the Servicer hereunder, either (i) the successor Servicer
shall represent and warrant that it is a member of MERS in good standing and
shall agree to comply in all material respects with the rules and procedures
of
MERS in connection with the servicing of the Mortgage Loans that are registered
with MERS or (ii) the predecessor Servicer shall cooperate with the
successor Servicer either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Purchaser and to execute and deliver such other notices, documents and
other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor Servicer or (y) in causing MERS to designate on the MERS® System the
successor Servicer as the servicer of such Mortgage Loan.
By
a
written notice, the Master Servicer, with the consent of the other parties,
may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section
8.02. Termination
Without Cause.
This
Agreement shall terminate upon: (i) the later
of (a)
the distribution of the final payment or Liquidation Proceeds on the last
Mortgage Loan to the Master Servicer (or advances by the Servicer for the same),
and (b) the disposition of all REO Property acquired upon foreclosure of the
last Mortgage Loan and the remittance of all funds due hereunder, or (ii) mutual
consent of the Servicer, the Seller, the Master Servicer and the Trust
Administrator in writing, provided
such
termination is also acceptable to the Rating Agencies or (iii) at the sole
option of the Seller, without cause, upon 60 days written notice. Any such
notice of termination shall be in writing and delivered to the Trustee, the
Master Servicer, the Trust Administrator and the Servicer by registered mail
to
the address set forth in Section 9.04 of this Agreement. The Servicer shall
comply with the termination procedures set forth in Sections 8.01, 8.02 and
9.01.
-48-
In
the
event the Seller terminates the Servicer without cause, the Seller shall be
required to pay to the Servicer a termination fee in an amount equal to the
product
of (i)
1.50% and (ii) the outstanding principal balance of the terminated Mortgage
Loans as of the date of such termination.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01. Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02(ii), the Master
Servicer shall (i) within 90 days of the Servicer’s notice of such termination,
succeed to and assume all of the Servicer’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01, which has
a
residential primary servicer rating issued by the Rating Agencies of at least
“average,” and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
simultaneously with the termination of the Servicer’s responsibilities, duties
and liabilities under this Agreement; or (b) pursuant to a termination under
Section 8.02(iii) or Section 8.04, the Seller shall appoint a successor having
the characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer’s responsibilities, duties and liabilities under
this Agreement. Any successor to the Servicer shall be subject to the approval
of the Master Servicer. Any approval of a successor servicer by the Master
Servicer and, to the extent required by the Pooling and Servicing Agreement,
the
Trustee, shall, if the successor servicer is not at that time a servicer of
other Mortgage Loans for the Trust Fund, be conditioned upon the receipt by
the
Master Servicer, the Seller, the Trust Administrator and the Trustee of a letter
from each Rating Agency to the effect that such transfer of servicing will
not
result in a qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates. In connection with such appointment and assumption,
the
Master Servicer or the Seller, as applicable, may make such arrangements for
the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under this
Agreement. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 9.01 and shall in no event relieve
the Servicer of the representations and warranties made pursuant to Sections
6.01 and the remedies available to the Master Servicer, the Trustee, the Trust
Administrator and the Seller under Sections 6.02, 6.03 and 6.04, it being
understood and agreed that the provisions of such Sections 6.01, 6.02, 6.03
and
6.04 shall be applicable to the Servicer notwithstanding any such resignation
or
termination of the Servicer, or the termination of this Agreement. Neither
the
Master Servicer, in its capacity as successor servicer, nor any other successor
servicer shall be responsible for the lack of information and/or documents
that
are not transferred to it by the Servicer and that it cannot otherwise obtain
through reasonable efforts.
-49-
Within
a
reasonable period of time, but in no event longer than 90 days following notice
of termination pursuant to Section 8.02(iii) or 30 days following notice of
termination pursuant to Sections 8.01 or 8.02(ii), the Servicer shall prepare,
execute and deliver to the successor entity any and all documents and other
instruments, place in such successor’s possession all Servicing Files, and do or
cause to be done all other acts or things necessary or appropriate to effect
the
purposes of such notice of termination, including but not limited to the
transfer of any Mortgage Notes and the related documents. The Servicer shall
cooperate with the Trustee, the Master Servicer, the Trust Administrator or
the
Seller, as applicable, and such successor in effecting the termination of the
Servicer’s responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without limitation the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer, the Master Servicer, the Trust Administrator and
the
Seller an instrument (i) accepting such appointment, wherein the successor
shall
make the representations and warranties set forth in Section 6.01 and provide
for the same remedies set forth in Sections 6.02, 6.03 and 6.04 herein and
(ii)
an assumption of the due and punctual performance and observance of each
covenant and condition to be performed and observed by the Servicer under this
Agreement, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or termination of this Agreement
pursuant to Sections 6.02, 7.03, 8.01, 8.02 or 8.04 shall not affect any claims
that the Seller, the Master Servicer, the Trust Administrator or the Trustee
may
have against the Servicer arising out of the Servicer’s actions or failure to
act prior to any such termination or resignation. In addition, in the event
any
successor servicer is appointed pursuant to Section 8.02(iii) of this Agreement,
such successor servicer must satisfy the conditions relating to the transfer
of
servicing set forth in the Pooling and Servicing Agreement.
The
Servicer shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Loan documents and related
documents and statements held by it hereunder and the Servicer shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer.
-50-
Upon
a
successor’s acceptance of appointment as such, it shall notify the Trustee, the
Seller, the Trust Administrator, the Master Servicer and the Depositor of such
appointment in accordance with the procedures set forth in Section
9.04.
Section
9.02. Costs.
The
Servicer shall pay the legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be paid
by (i) the terminated or resigning Servicer if such termination or resignation
is a result of an occurrence of a termination event under Section 8.01, (ii)
the
Seller if such termination is pursuant to Section 8.02(iii) and (iii) in all
other cases by the Trust Fund. Subject to Section 2.02, the Seller, on behalf
of
the Depositor, shall pay the costs associated with the preparation, delivery
and
recording of Assignments of Mortgages by the Seller or the Seller’s
designee.
Section
9.03. Protection
of Confidential Information.
The
Servicer shall keep confidential and shall not divulge to any party, without
the
Seller’s prior written consent, any nonpublic information pertaining to the
Mortgage Loans or any borrower thereunder, except to the extent that it is
appropriate for the Servicer to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
Section
9.04. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by overnight courier, addressed as
follows (or such other address as may hereafter be furnished to the other party
by like notice):
|
(i)
|
if
to the Seller:
|
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse Securities (USA) LLC
Eleven
Madison Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxx
with
copy
to:
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse Securities (USA) LLC
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel - RMBS0
-51-
|
(ii)
|
if
to the Servicer:
|
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
0000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Attn:
Xxxxxx X. Xxxxx, Vice President of Loan Administration
with
copy
to:
Xxxxxxx
X. Xxxxxxxx
Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp.
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
|
(iii)
|
if
to the Master Servicer:
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, TBW 2007-2
(or,
in
the case of overnight deliveries,
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
(iv)
|
if
to the Trust Administrator:
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, TBW 2007-2
(or,
in
the case of overnight deliveries,
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
(v)
|
if
to the Trustee:
|
U.S.
Bank
National Association
EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Telephone:
(000) 000-0000
-52-
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx
X. Xxxxxxxx
Any
such
demand, notice or communication hereunder shall be deemed to have been received
on the date delivered to or received at the premises of the addressee.
Section
9.05. Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement that is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section
9.06. No
Personal Solicitation.
From
and
after the Closing Date, the Servicer hereby agrees that it will not take any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Servicer’s behalf, to
personally, by telephone or mail, or electronically by e-mail or through the
internet or otherwise, solicit the borrower or obligor under any Mortgage Loan
to refinance a Mortgage Loan, in whole or in part, without the prior written
consent of the Depositor. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Servicer or any affiliate of the
Servicer that are directed to the general public at large, including without
limitation mass mailing based on commercially acquired mailing lists, newspaper,
radio and television advertisements shall not constitute solicitation under
this
Section 9.06, nor shall efforts undertaken by the Servicer to direct borrowers
who are determined to be in the course of refinancing a Mortgage Loan to conduct
such refinance with the Servicer’s affiliated originator be deemed to constitute
impermissible solicitation under this Section 9.06, provided that such efforts
shall not be intended to cause the refinance of a Mortgage Loan that would
not
otherwise have been refinanced or have the effect of increasing the rate at
which the Mortgage Loans are prepaid. Notwithstanding anything to the contrary,
this Section 9.06 shall not prohibit the Servicer or its agents or affiliates
from servicing the refinancing needs or other financial needs of a Mortgagor
who
without solicitation, contacts the Servicer or its agents or affiliates
directly.
-53-
Section
9.07. Counterparts.
This
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.
Section
9.08. Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Seller in the State of New York and shall be deemed to have
been
made in the State of New York. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
9.09. Further
Agreements.
The
Seller and the Servicer each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section
9.10. Intention
of the Parties.
It
is the
intention of the parties that the Seller is conveying, and the Servicer is
receiving only a contract for servicing the Mortgage Loans. Accordingly, the
parties hereby acknowledge that the Trust Fund remains the sole and absolute
owner of the Mortgage Loans (other than the servicing rights) and all rights
related thereto.
Section
9.11. Successors
and Assigns; Assignment of Servicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Servicer, the Seller and the Master Servicer and their respective successors
and
assigns. This Agreement shall not be assigned, pledged or hypothecated by the
Servicer to a third party except in accordance with Section 7.03.
Section
9.12. Assignment
by the Seller.
The
Seller shall assign (exclusive of the Seller’s rights arising under Section
8.02), its rights under this Agreement to the Depositor, which in turn shall
assign such rights to the Trustee, and the Trustee then shall succeed to all
rights of the Seller under this Agreement; provided that, notwithstanding the
foregoing, no obligations of the Seller under this Agreement are being assumed
by the Trustee except as expressly provided herein, and then only to the extent
such obligations can be satisfied from moneys available therefor under the
Pooling and Servicing Agreement.
-54-
Section
9.13. Amendment.
This
Agreement may be amended from time to time by the Servicer and the Seller,
with
(i) the prior written consent and agreement signed by the Master Servicer,
the
Seller, the Trustee, the Trust Administrator and the Servicer, provided
that the
party requesting such amendment shall, at its own expense, provide the Trustee,
the Master Servicer, the Trust Administrator and the Seller with an Opinion
of
Counsel that such amendment will not materially adversely affect the interest
of
the Certificateholders in the Mortgage Loans. Any such amendment shall be deemed
not to adversely affect in any material respect any the interest of the
Certificateholders in the Mortgage Loans if the Trustee and the Trust
Administrator receive written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce, qualify or withdraw
the
then current rating assigned to the Certificates (and any Opinion of Counsel
received by the Trustee, the Master Servicer, the Trust Administrator and the
Seller in connection with any such amendment may rely expressly on such
confirmation as the basis therefor);
provided, however,
that this Agreement may be amended by the Servicer, the Seller, the Master
Servicer and the Trustee from time to time without the delivery of an Opinion
of
Counsel described above to the extent necessary, in the judgment of the Seller
and its counsel, to comply with any rules promulgated by the Commission and
any
interpretations thereof by the staff of the Commission.
Section
9.14. Waivers.
No
term
or provision of this 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.
Section
9.15. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
9.16. Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trust Administrator and the Depositor receive the benefit
of
the provisions of this Agreement as intended third party beneficiaries of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the Trust Administrator, the Certificate Insurer, the Master
Servicer and the Depositor as if they were parties to this Agreement, and the
Trust Administrator, the Certificate Insurer, the Master Servicer and the
Depositor shall have the same rights and remedies to enforce the provisions
of
this Agreement as if they were parties to this Agreement. The Servicer shall
only take direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed by this
Agreement or the Credit Risk Manager Agreement. Notwithstanding the foregoing,
all rights of the Trust Administrator, the Certificate Insurer, the Master
Servicer and the Depositor (other than the right to indemnification) and all
rights and obligations of the Master Servicer hereunder (other than the right
to
indemnification) shall terminate upon the termination of the Trust Fund pursuant
to the Pooling and Servicing Agreement.
-55-
A
copy of
all assessments, attestations, reports and certifications required to be
delivered by the Servicer under this Agreement shall be delivered to the Master
Servicer by the date(s) specified herein, and where such documents are required
to be addressed to any party, such addresses shall include the Master Servicer
and the Master Servicer shall be entitled to rely on such
documents.
Section
9.17. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean by reason of enumeration.
Section
9.18. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including without limitation
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
-56-
IN
WITNESS WHEREOF, the Servicer, the Seller and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
DLJ
MORTGAGE CAPITAL, INC.,
as
Seller
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
XXXXXX,
BEAN & XXXXXXXX MORTGAGE CORP.,
as
Servicer
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
CEO
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer and as Trust Administrator
By:
/s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
U.S.
BANK
NATIONAL ASSOCIATION,
not
in
its individual capacity but solely as Trustee
By:
/s/ Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Vice President
-57-
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(Including
Prepayment Penalty Schedule)
[To
be
retained in a separate closing binder entitled “TBW 2007-2 Mortgage Loan
Schedule” at the Washington, DC offices of XxXxx Xxxxxx LLP]
A-1
EXHIBIT
B
CUSTODIAL
ACCOUNT CERTIFICATION
_____________
__, ____
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 3.03 of
the
Servicing Securitization Agreement, dated as of May 1, 2007.
Title
of
Account: “Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp. in trust for U.S. Bank National Association,
as Trustee for the TBW Mortgage-Backed Trust Series 2007-2.”
Account
Number: ______________________.
|
Address
of office or branch of the Servicer at which account is
maintained:
|
_____________________________________ | |
| _____________________________________ | ||
|
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
Servicer
|
||
|
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
Date:
______________________________________
|
B-1
EXHIBIT
C
ESCROW
ACCOUNT CERTIFICATION
_____________
___, ____
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 3.03 of the
Servicing Securitization Agreement, dated as of May 1, 2007.
| Title of Account: |
“Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp. in trust for U.S. Bank National
Association, as Trustee for the TBW Mortgage-Backed Trust Series
2007-2.”
|
Account
Number: ______________________.
|
Address
of office or branch of the Servicer at which account is
maintained:
|
_____________________________________ | |
| _____________________________________ | ||
|
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
Servicer
|
||
|
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
Date:
______________________________________
|
X-0
XXXXXXX
X
XXX
0000-0 XXXXXXX AND SERVICING AGREEMENT
[See
Tab
#3]
D-1
EXHIBIT
E
FORM
OF
LOAN LOSS REPORT
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Servicer
Cut Off Date
|
Reporting
cycle cut off date
|
DATE(MM/DD/YYYY)
|
|
Servicer
Loan Number
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
VARCHAR2(15)
|
|
Investor
Loan Number
|
Individual
number that uniquely identifies loan as defined by Xxxxx Fargo Master
Servicing.
|
NUMBER(9)
|
|
Servicer
Customer Number
|
Unique
number assigned to each servicer
|
NUMBER(3)
|
|
Investor
ID
|
Unique
number assigned to a group of loans in the servicing system.
|
NUMBER
(10,2)
|
|
Resolution
Type
|
Description
of the process to resolve the delinquency. Ex. Foreclosure, Short
Sale,
Third Party Sale, Deed In Lieu, etc.
|
VARCHAR2(15)
|
|
Resolution
Date
|
Date
the process described in Resolution Type was completed.
|
DATE(MM/DD/YYYY)
|
|
Liquidation
Date
|
Date
the loan was liquidated on the servicers servicing system.
|
DATE(MM/DD/YYYY)
|
|
REO
Sale Date
|
Actual
date that the sale of the REO property closed escrow.
|
DATE(MM/DD/YYYY)
|
|
Title
Date
|
Date
clear title was recorded.
|
DATE(MM/DD/YYYY)
|
|
MI
Percent
|
Percent
of coverage provided by the PMI company in the event of loss on a
defaulted loan.
|
NUMBER(6,5)
|
|
First
Legal Date
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
E-1
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Foreclosure
Fees
|
Amount
paid to the Foreclosure Attorney for performing his
service.
|
NUMBER(10,2)
|
|
Foreclosure
Costs
|
Amount
incurred as part of the foreclosure process.
|
NUMBER(10,2)
|
|
Bankruptcy
Costs
|
Amount
incurred related to a bankruptcy filing involving the borrower or
subject
property.
|
NUMBER(10,2)
|
|
Eviction
Costs
|
Amount
incurred related to the eviction process.
|
NUMBER(10,2)
|
|
Appraisal
Costs
|
Amount
incurred to acquire a value for the subject property.
|
NUMBER(10,2)
|
|
Preservation
Costs
|
Amount
incurred to preserve and secure the property.
|
NUMBER(10,2)
|
|
Utility
Costs
|
Amount
incurred for utilities at the property.
|
NUMBER(10,2)
|
|
HOA
Costs
|
Amount
paid to the Home Owners Association to maintain the property
dues.
|
NUMBER(10,2)
|
|
Other
Costs
|
Amount
of Miscellaneous Expenses incurred during the default
process.
|
NUMBER(10,2)
|
|
Interest
on Advances
|
Interest
paid by HUD/VA or MI on the amounts advanced related to the liquidation
of
the property.
|
NUMBER(10,2)
|
|
Hazard
Refunds
|
Amount
of refunds of Hazard Premiums paid.
|
NUMBER(10,2)
|
|
Real
Estate Taxes
|
Amount
of any taxes paid during the default process.
|
NUMBER(10,2)
|
|
Hazard
Premiums
|
Amount
paid for Hazard Insurance on the property held as collateral for
the
mortgage.
|
NUMBER(10,2)
|
|
MI
Premiums
|
Amount
paid for Mortgage Insurance related to the mortgage loan.
|
NUMBER(10,2)
|
|
Other
Escrow
|
Miscellaneous
Expenses incurred from the escrow account during the default
process.
|
NUMBER(10,2)
|
|
Sales
Proceeds
|
Funds
received in connection with the sale of the property held as collateral
for the mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Initial
Claim Proceeds
|
Funds
received in connection with the conveyance of the property to the
insuring
agency (Positive Number).
|
NUMBER(10,2)
|
E-2
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Final
Claim Proceeds
|
Claim
funds received from the insuring agency (HUD/VA).
|
NUMBER(10,2)
|
|
Other
Proceeds
|
Miscellaneous
funds received in connection with the property held as collateral
for the
mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Escrow
Balance
|
Any
positive balance remaining in the escrow account.
|
NUMBER(10,2)
|
|
Replacement
Reserve Bal
|
Amount
of funds held in the Replacement Reserve account (Positive
Number).
|
NUMBER(10,2)
|
|
Restricted
Escrow Bal
|
Amount
of funds held in the Restricted Escrow account.
|
NUMBER(10,2)
|
|
Suspense
Balance
|
Amount
of funds held in the Suspense account (Positive Number).
|
NUMBER(10,2)
|
|
Servicer
Retained Loss
|
The
total amount of the Gross Final Actual (Loss)/Gain the servicer will
take,
due to Interest/Expense Curtailments by HUD/VA (This would include
Advances not claimed to HUD/VA or MI due to servicer error) (Positive
Number).
|
NUMBER(10,2)
|
E-3
EXHIBIT
F
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Securitization Servicing Agreement dated as of May 1, 2007 (the
“Agreement”), by and among DLJ Mortgage Capital, Inc., Xxxxxx, Xxxx &
Xxxxxxxx Mortgage Corp., as servicer (the “Servicer”), Xxxxx Fargo Bank,
N.A. (the “Master Servicer” and the “Trust Administrator”) and U.S. Bank
National Association, as Trustee (the “Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Master Servicer and Credit Suisse First Boston Mortgage Securities Corp.
(the “Depositor”), 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 Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’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 Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor and
the Master Servicer pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2) Based
on
my knowledge, the Servicer 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 Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the Depositor and
the
Master Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer 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
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Depositor and the Master Servicer. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor and the Master Servicer. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
F-1
Date:
_________________________
By:
_______________________________
Name:
Title:
F-2
EXHIBIT
G
[RESERVED]
G-1
EXHIBIT
H
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”, as identified by a xxxx in the column titled
“Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
H-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to the Master Servicer, including those to be filed with the Commission,
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A)
are
prepared in accordance with timeframes and other terms set forth
in the
transaction agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C) are filed
with
the Commission as required by its rules and regulations; and (D)
agree
with investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
to be remitted to the Master Servicer are allocated and remitted
in
accordance with timeframes, distribution priority and other terms
set
forth in the transaction agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to the Master Servicer are posted within two business days to
the
Servicer’s investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to the Master Servicer per the remittance reports agree
with
cancelled checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
H-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
H-3
EXHIBIT
I
TRANSACTION
PARTIES
Trustee:
U.S. Bank National Association
Trust
Administrator: Xxxxx Fargo Bank, N.A.
Master
Servicer: Xxxxx Fargo Bank, N.A.
PMI
Insurer(s):
Interest
Rate Swap Counterparty:
Interest
Rate Cap Counterparty:
Servicer:
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
Originator:
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
Custodian:
Colonial Bank, N.A.
Seller:
DLJ Mortgage Capital, Inc.
I-1
EXHIBIT
J
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Services
(TBW
2007-2)
|
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.05 of that certain
securitization servicing agreement, dated as of May 1, 2007 (the
“Agreement”), by and among DLJ Mortgage Capital, Inc., Xxxxxx, Xxxx &
Xxxxxxxx Mortgage Corp., as servicer (the “Servicer”) and Xxxxx Fargo
Bank, N.A., as master servicer and trust administrator, and U.S.
Bank
National Association, as Trustee, relating to the issuance of the
TBW
Mortgage-Backed Pass-Through Certificates, Series
2007-2
|
[_______],
the undersigned, a duly authorized [_______] of [the Servicer][Name of
Subservicer], does hereby certify the following for the [calendar year][identify
other period] ending on December 31, 20[__]:
|
1.
|
A
review of the activities of the Servicer during the preceding calendar
year (or portion thereof) and of its performance under the Agreement
for
such period has been made under my
supervision.
|
|
2.
|
To
the best of my knowledge, based on such review, the Servicer has
fulfilled
all of its obligations under the Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there
has
been a failure to fulfill any such obligation in any material respect,
I
have specifically identified to the Master Servicer, the Depositor
and the
Trust Administrator each such failure known to me and the nature
and
status thereof, including the steps being taken by the Servicer to
remedy
such default.
|
Certified
By:
______________________________
Name:
Title:
J-1
EXHIBIT
K
CONTENTS
OF SERVICING FILE
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items, which shall be available for inspection by the
Purchaser:
1. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
2. Residential
loan application.
3. Uniform
underwriter and transmittal summary (Xxxxxx Xxx Form 1008) or reasonable
equivalent.
4. Credit
report on the mortgagor.
5. Business
credit report, if applicable.
6. Residential
appraisal report and attachments thereto.
7. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with the Underwriting
Standards.
8. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Underwriting Standards.
9. Photograph
of the Mortgaged Property (may be part of appraisal).
10. Survey
of
the Mortgaged Property, if any.
11. Sales
contract, if applicable.
12. If
available, termite report, structural engineer’s report, water potability and
septic certification.
13. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
14. Any
ground lease, including all amendments, modifications and supplements
thereto.
15. Any
other
document required to service the Mortgage Loans.
K-1
EXHIBIT
L
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.
|
|
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.
|
|
(a)
|
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
|
L-1
|
*
|
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 ( ).
|
L-2
Exhibit
3A: 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)
|
|
(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
|
||
L-3
|
(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)
|
|
L-4
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
L-5
EXHIBIT
M
STANDARD
FILE LAYOUT - DELINQUENCY REPORTING
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
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 approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
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 End/Close
|
MM/DD/YYYY
|
|
|
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 with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
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 sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
M-1
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
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 brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
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 Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
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 ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
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 ($)
|
M-2
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:
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
|
M-3
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
M-4
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
M-5
EXHIBIT
N
STANDARD
FILE LAYOUT - MASTER SERVICING
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
N-1
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
N-2
