WELLS FARGO BANK, N.A., as RMBS Master Servicer AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-2, as Issuing Entity DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee AMERICAN HOME MORTGAGE ACCEPTANCE, INC. as Sponsor and AMERICAN HOME MORTGAGE...
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XXXXX
FARGO BANK, N.A.,
as
RMBS Master Servicer
as
Issuing Entity
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Indenture Trustee
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
Sponsor
and
AMERICAN
HOME MORTGAGE SERVICING, INC.
as
RMBS Servicer
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Dated
as of June 30, 2006
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Mortgage
Loans
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TABLE
OF
CONTENTS
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ARTICLE
I
Definitions
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Section
1.01
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Definitions.
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Section
1.02
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Other
Definitional Provisions.
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Section
1.03
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Interest
Calculations.
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ARTICLE
II
Representations
and Warranties
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Section
2.01
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Representations
and Warranties Regarding the RMBS Servicer.
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Section
2.02
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Existence.
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Section
2.03
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Enforcement
of Representations and Warranties.
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ARTICLE
III
Administration
and Servicing of Mortgage Loans
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Section
3.01
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RMBS
Servicer to Act as RMBS Servicer.
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Section
3.02
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Subservicing
Agreements Between RMBS Servicer and Subservicers.
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Section
3.03
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Successor
Subservicers.
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Section
3.04
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Liability
of the RMBS Servicer.
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Section
3.05
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Assumption
or Termination of Subservicing Agreements by RMBS Master
Servicer.
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Section
3.06
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Collection
of Mortgage Loan Payments.
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Section
3.07
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Withdrawals
from the Protected Account.
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Section
3.08
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Collection
of Taxes Assessments and Similar Items; Servicing
Accounts.
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Section
3.09
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Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
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Section
3.10
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Maintenance
of Primary Insurance Policies; Collection Thereunder.
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Section
3.11
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Maintenance
of Hazard Insurance and Fidelity Coverage.
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Section
3.12
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Due-on-Sale
Clauses; Assumption Agreements.
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Section
3.13
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Realization
Upon Defaulted Mortgage Loans.
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Section
3.14
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Indenture
Trustee to Cooperate; Release of Mortgage Files.
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Section
3.15
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Servicing
Compensation.
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Section
3.16
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Reserved.
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Section
3.17
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Reserved.
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Section
3.18
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Optional
Purchase of Defaulted Mortgage Loans.
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Section
3.19
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Information
Required by the Internal Revenue Service Generally and Reports
of
Foreclosures and Abandonments of Mortgaged Property.
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Section
3.20
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Fair
Credit Reporting Act.
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Section
3.21
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Waiver
of Prepayment Charges.
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ARTICLE
IV
Servicing
Certificate
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Section
4.01
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Remittance
Reports.
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Section
4.02
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Reserved.
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Section
4.03
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Reserved.
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Section
4.04
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Advances.
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Section
4.05
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Compensating
Interest Payments.
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Section
4.06
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RMBS
Servicer Compliance Statement.
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Section
4.07
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Report
on Assessments of Compliance and Attestation.
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Section
4.08
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Attestation
Reports.
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Section
4.09
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Annual
Certification.
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Section
4.10
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Intention
of the Parties and Interpretation.
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Section
4.11
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Indemnification.
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ARTICLE
V
The
RMBS Servicer
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Section
5.01
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Liability
of the RMBS Servicer.
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Section
5.02
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Merger
or Consolidation of or Assumption of the Obligations of the RMBS
Servicer.
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Section
5.03
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Limitation
on Liability of the RMBS Servicer and Others.
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Section
5.04
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RMBS
Servicer Not to Resign.
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Section
5.05
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Delegation
of Duties.
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Section
5.06
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Indemnification.
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Section
5.07
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Duties
of the RMBS Servicer With Respect to the Indenture.
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Section
5.08
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Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
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ARTICLE
VI
Default
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Section
6.01
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Servicing
Default.
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Section
6.02
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RMBS
Master Servicer to Act; Appointment of Successor.
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Section
6.03
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Reserved.
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Section
6.04
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Waiver
of Defaults.
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ARTICLE
VII
Miscellaneous
Provisions
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Section
7.01
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Amendment.
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Section
7.02
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GOVERNING
LAW.
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Section
7.03
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Notices.
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Section
7.04
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Severability
of Provisions.
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Section
7.05
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Third-Party
Beneficiaries.
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Section
7.06
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Counterparts.
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Section
7.07
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Effect
of Headings and Table of Contents.
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Section
7.08
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Termination.
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Section
7.09
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No
Petition.
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Section
7.10
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No
Recourse.
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Section
7.11
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Consent
to Jurisdiction.
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Section
7.12
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Certain
Terms Concerning Indenture Trustee.
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[TO
BE UPDATED]
EXHIBIT
A
- MORTGAGE LOAN SCHEDULE
EXHIBIT
B
- FORM OF REQUEST FOR RELEASE
EXHIBIT
C
- FORM OF CERTIFICATION TO BE PROVIDED BY THE
RMBS
SERVICER
EXHIBIT
D
- LOAN LEVEL FORMAT FOR TAPE INPUT, RMBS
SERVICER PERIOD REPORTING
EXHIBIT
E
- REPORTING DATA FOR DEFAULTED LOANS
EXHIBIT
F
- CALCULATION OF REALIZED LOSS/GAIN FORM 332 - INSTRUCTION
SHEET
EXHIBIT
G
- SERVICING CRITERIA
This
RMBS
Servicing Agreement, dated as of June 30, 2006, among Xxxxx Fargo Bank, N.A.,
as
RMBS Master Servicer (“RMBS Master Servicer”), American Home Mortgage Investment
Trust 2006-2, as Issuing Entity (the AIssuing
Entity”), American Home Mortgage Acceptance, Inc. as Sponsor (the “Sponsor”),
American Home Mortgage Servicing, Inc. as RMBS Servicer (the “RMBS Servicer”)
and Deutsche Bank Trust Company Americas, as Indenture Trustee (the AIndenture
Trustee”).
W
I T
N E S S E T H T H A T :
WHEREAS,
pursuant to the terms of the Mortgage Loan Purchase Agreement, American Home
Mortgage Securities LLC (the “Company” or “Depositor”) will acquire the Mortgage
Loans;
WHEREAS,
the Company will create American Home Mortgage Investment Trust 2006-2, a
Delaware statutory trust (the “Issuing Entity”), and will transfer the Mortgage
Loans and all of its rights under the Mortgage Loan Purchase Agreement to the
Issuing Entity;
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement, dated as
of
June 30, 2006 (“Trust Agreement”), among the Company, as depositor, Wilmington
Trust Company, as owner trustee (“Owner Trustee”) and Xxxxx Fargo Bank, N.A., as
securities administrator (the “Securities Administrator”), the Company will
convey the Mortgage Loans to the Issuing Entity in exchange for the Certificates
(as defined below);
WHEREAS,
pursuant to the terms of the Trust Agreement, the Issuing Entity will issue
and
transfer to or at the direction of the Depositor, the Trust Certificates, 2006-2
(“Certificates”);
WHEREAS,
pursuant to the terms of an Indenture, dated as of June 30, 2006 (“Indenture”),
among the Issuing Entity, the Securities Administrator and the Indenture
Trustee, the Issuing Entity will pledge the Mortgage Loans and issue and
transfer to or at the direction of the Purchaser the Mortgage-Backed Notes,
Series 2006-2 (the “Notes”);
WHEREAS,
pursuant to the terms of the RMBS Master Servicing Agreement, the RMBS Master
Servicer will master service the Mortgage Loans set forth on the Mortgage Loan
Schedule for the benefit of the holders of the Notes; and
WHEREAS,
pursuant to the terms of this RMBS Servicing Agreement, the RMBS Servicer shall
service the Mortgage Loans for the benefit of the Issuing Entity, the Indenture
Trustee and the holders of the Notes;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For
all
purposes of this RMBS Servicing Agreement, except as otherwise expressly
provided herein or unless the context otherwise requires, capitalized terms
not
otherwise defined herein shall have the meanings assigned to such terms in
the
Definitions contained in Appendix A to the Indenture which is incorporated
by
reference herein. All other capitalized terms used herein shall have the
meanings specified herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this RMBS Servicing Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As
used
in this RMBS Servicing Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
RMBS Servicing Agreement or in any such certificate or other document, and
accounting terms partly defined in this RMBS Servicing Agreement or in any
such
certificate or other document, to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
RMBS
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this RMBS Servicing Agreement or in
any
such certificate or other document shall control.
(c) The
words
Ahereof,”
Aherein,”
Ahereunder”
and words of similar import when used in this RMBS Servicing Agreement shall
refer to this RMBS Servicing Agreement as a whole and not to any particular
provision of this RMBS Servicing Agreement; Section and Exhibit references
contained in this RMBS Servicing Agreement are references to Sections and
Exhibits in or to this RMBS Servicing Agreement unless otherwise specified;
and
the term Aincluding”
shall mean Aincluding
without limitation”.
(d) The
definitions contained in this RMBS Servicing Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well
as the feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
Section
1.03 Interest
Calculations.
All
calculations of interest hereunder that are made in respect of the Stated
Principal Balance of a Mortgage Loan shall be made on the basis of a 360 day
year consisting of twelve 30 day months, notwithstanding the terms of the
related Mortgage Note and Mortgage.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Representations
and Warranties Regarding the RMBS Servicer.
The
RMBS
Servicer represents and warrants to the Issuing Entity, the Indenture Trustee
and the RMBS Master Servicer, that:
(i) The
RMBS
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and has the corporate power to own
its
assets and to transact the business in which it is currently engaged. The RMBS
Servicer is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the RMBS Servicer
or
the validity or enforceability of the Mortgage Loans;
(ii) The
RMBS
Servicer has the power and authority to make, execute, deliver and perform
this
RMBS Servicing Agreement and all of the transactions contemplated under this
RMBS Servicing Agreement, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this RMBS Servicing
Agreement. When executed and delivered, this RMBS Servicing Agreement will
constitute the legal, valid and binding obligation of the RMBS Servicer
enforceable in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally and by the availability of equitable
remedies;
(iii) The
RMBS
Servicer is not required to obtain the consent of any other Person or any
consent, license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this RMBS
Servicing Agreement, except for such consent, license, approval or
authorization, or registration or declaration, as shall have been obtained
or
filed, as the case may be;
(iv) The
execution and delivery of this RMBS Servicing Agreement and the performance
of
the transactions contemplated hereby by the RMBS Servicer will not violate
any
provision of any existing law or regulation or any order or decree of any court
applicable to the RMBS Servicer or any provision of the charter or bylaws of
the
RMBS Servicer, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the RMBS Servicer is a party or by which
the RMBS Servicer may be bound;
(v) No
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending (other than litigation with respect
to
which pleadings or documents have been filed with a court, but not served on
the
RMBS Servicer), or to the knowledge of the RMBS Servicer threatened, against
the
RMBS Servicer or any of its properties or with respect to this RMBS Servicing
Agreement or the Notes or the Certificates which, to the knowledge of the RMBS
Servicer, has a reasonable likelihood of resulting in a material adverse effect
on the transactions contemplated by this RMBS Servicing Agreement;
and
(vi) The
RMBS
Servicer is a member of MERS in good standing, and will 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.
The
foregoing representations and warranties shall survive any termination of the
RMBS Servicer hereunder.
Section
2.02 Existence.
The
Issuing Entity will keep in full effect its existence, rights and franchises
as
a statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuing Entity hereunder is or becomes, organized under the laws
of any other state or of the United States of America, in which case the Issuing
Entity will keep in full effect its existence, rights and franchises under
the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this RMBS Servicing
Agreement.
Section
2.03 Enforcement
of Representations and Warranties.
The
Indenture Trustee, as pledgee of the Mortgage Loans, shall enforce the
representations and warranties and related obligations for breaches thereof
of
the Sponsor pursuant to the Mortgage Loan Purchase Agreement. Upon the discovery
by the Sponsor, the RMBS Master Servicer, the Indenture Trustee or the Company
of a breach of any of the representations and warranties made in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan which materially and
adversely affects the interests of the Noteholders or the Certificateholders,
the party discovering the same shall give prompt written notice to the other
parties. The Indenture Trustee shall promptly notify the Sponsor and request
that, pursuant to the terms of the Mortgage Loan Purchase Agreement the Sponsor
either (i) cure such breach in all material respects or (ii) purchase such
Mortgage Loan in accordance with the Mortgage Loan Purchase Agreement; provided
that the Sponsor shall, subject to the conditions set forth in the Mortgage
Loan
Purchase Agreement, have the option to substitute an Eligible Substitute
Mortgage Loan or Eligible Substitute Mortgage Loans for such Mortgage Loan
upon
delivery of an Officer’s Certificate to the Indenture Trustee stating that such
Eligible Substitute Mortgage Loan satisfies the definition of Eligible
Substitute Mortgage Loan set forth in Appendix A to the Indenture and that
the
Substitution Adjustment Amount, if any, has been deposited into the Protected
Account. Monthly Payments due with respect to Eligible Substitute Mortgage
Loans
in the month of substitution shall not be part of the Trust Estate and will
be
retained by the RMBS Servicer and remitted by the RMBS Servicer to the Sponsor
on the next succeeding Payment Date. For the month of substitution,
distributions to the Payment Account pursuant to this Agreement will include
the
Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter
the
Sponsor shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The RMBS Servicer shall amend or cause to be amended
the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and
the substitution of the related Eligible Substitute Mortgage Loan and the RMBS
Servicer shall promptly deliver the amended Mortgage Loan Schedule to the RMBS
Master Servicer, Owner Trustee, Securities Administrator and Indenture
Trustee.
In
connection with the substitution of one or more Eligible Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the RMBS Servicer will determine
the amount (such amount, a “Substitution Adjustment Amount”), if any, by which
the aggregate Stated Principal Balance of all such Eligible Substitute Mortgage
Loans as of the date of substitution is less than the aggregate principal
balance of all such Deleted Mortgage Loans (after application of the principal
portion of the Monthly Payments due on such Deleted Mortgage Loans in the month
of substitution). The Sponsor shall pay the Substitution Adjustment Amount
to
the RMBS Servicer and the RMBS Servicer shall deposit such Substitution
Adjustment Amount into the Protected Account upon receipt.
In
connection with any repurchase or substitution of a Mortgage Loan pursuant
to
this Section 2.03, the Sponsor shall furnish to the Securities Administrator
an
officer’s certificate, signed by a duly authorized officer of the Sponsor to the
effect that such repurchase or substitution has been made in accordance with
the
terms and conditions of this RMBS Servicing Agreement and that all conditions
precedent to such repurchase or substitution have been satisfied, including
the
delivery to the Securities Administrator of the Purchase Price or Substitution
Adjustment Amount, as applicable, for deposit into the Payment Account, together
with copies of any Opinion of Counsel required to be delivered pursuant to
this
Agreement and the related Request for Release. Upon receipt of such
documentation, the Securities Administrator shall approve such repurchase or
substitution, as applicable, which approval shall be based solely on the
Securities Administrator’s receipt of such documentation and
deposits.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
3.01 RMBS
Servicer to Act as RMBS Servicer.
(a) The
RMBS
Servicer shall service, or take such actions as are necessary to ensure, the
servicing and administration of the Mortgage Loans and any REO Property in
accordance with this RMBS Servicing Agreement and its normal servicing
practices, which generally shall conform to the standards of an institution
prudently servicing mortgage loans for its own account and shall have full
authority to do anything it reasonably deems appropriate or desirable in
connection with such servicing and administration. The RMBS Servicer may perform
its responsibilities relating to servicing through other agents or independent
contractors, but shall not thereby be released from any of its responsibilities
for the servicing and administration of the Mortgage Loans. The authority of
the
RMBS Servicer, in its capacity as RMBS Servicer, and any Subservicer acting
on
its behalf, shall include, without limitation, the power on behalf of the
Issuing Entity and the Indenture Trustee to (i) consult with and advise any
Subservicer regarding administration of a related Mortgage Loan, (ii) approve
any recommendation by a Subservicer to foreclose on a related Mortgage Loan,
(iii) supervise the filing and collection of insurance claims and take or cause
to be taken such actions on behalf of the insured Person thereunder as shall
be
reasonably necessary to prevent the denial of coverage thereunder, and (iv)
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing a related Mortgage Loan, including the employment of
attorneys, the institution of legal proceedings, the collection of deficiency
judgments, the acceptance of compromise proposals, the filing of any claims
under any Primary Insurance Policy or Lender Paid Mortgage Insurance Policy,
and
any other matter pertaining to a delinquent Mortgage Loan. The authority of
the
RMBS Servicer shall include, in addition, the power to (i) execute and deliver
customary consents or waivers and other instruments and documents, (ii) consent
to transfer of any related Mortgaged Property and assumptions of the related
Mortgage Notes (in the manner provided in this RMBS Servicing Agreement) and
(iii) collect any Insurance Proceeds and Liquidation Proceeds. Without limiting
the generality of the foregoing, the RMBS Servicer and any Subservicer acting
on
its behalf may, and is hereby authorized, and empowered by the Indenture
Trustee, to execute and deliver any instruments of satisfaction, cancellation,
partial or full release, discharge and all other comparable instruments, with
respect to the related Mortgage Loans, the insurance policies and the accounts
related thereto, and the Mortgaged Properties. The RMBS Servicer may exercise
this power in its own name or in the name of a Subservicer.
In
accordance with the standards of the preceding paragraph, the RMBS Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.08, and further as
provided in Section 3.07; provided that the RMBS Servicer shall not be obligated
to make such advance if, in its good faith judgment, the RMBS Servicer
determines that such advance will be a Nonrecoverable Advance.
The
relationship of the RMBS Servicer (and of any successor to the RMBS Servicer
under this Agreement) to the RMBS Master Servicer and the other parties hereto
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent; provided,
however, that the RMBS Servicer is authorized and empowered by the Indenture
Trustee, in its own name or in the name of any Subservicer, when the RMBS
Servicer or such Subservicer, as the case may be, believes it is appropriate
in
its best judgment to register any Mortgage Loan on the MERS7
System,
or cause the removal from the registration of any Mortgage Loan on the
MERS7
System,
to execute and deliver, on behalf of the Indenture 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 Indenture Trustee and its successors and assigns. Any expenses incurred
in connection with the actions described in the preceding sentence shall be
borne by the RMBS Servicer in accordance with Section 3.15, with no right of
reimbursement; provided, that if, as a result of MERS discontinuing or becoming
unable to continue operations in connection with the MERS System, it becomes
necessary to remove any Mortgage Loan from registration on the MERS System
and
to arrange for the assignment of the related Mortgages to the Indenture Trustee,
then any related expenses shall be reimbursable to the RMBS Servicer from the
Trust Estate.
(b) With
respect to each Mortgage Loan, consistent with the terms of this RMBS Servicing
Agreement, the RMBS Servicer may not consent to the placing of a lien senior
to
that of the Mortgage on the related Mortgaged Property.
(c) The
RMBS
Servicer or the related Subservicer, as the case may be, shall be entitled
to
(A) execute assumption agreements, substitution agreements, and instruments
of
satisfaction or cancellation or of full release or discharge, or any other
document contemplated by this RMBS Servicing Agreement and other comparable
instruments with respect to the Mortgage Loans and with respect to the Mortgaged
Properties subject to the Mortgages (and the Indenture Trustee shall promptly
execute or cause to be executed any such documents on request of the RMBS
Servicer and prepared by it) and (B) approve the granting of an easement thereon
in favor of another Person, any alteration or demolition of the related
Mortgaged Property or other similar matters, if it has determined, exercising
its good faith business judgment in the same manner as it would if it were
the
owner of the related Mortgage Loan, that the security for, and the timely and
full collectability of, such Mortgage Loan would not be adversely affected
thereby. An assumption pursuant to this Section 3.01 is permitted solely if
the
creditworthiness of the prospective purchaser of a Mortgaged Property meets
the
same or better underwriting guidelines as those which were applied to the
original borrower and the security for such Mortgage Loan is not impaired by
the
assumption. Any fee collected by the RMBS Servicer or the related Subservicer
for processing such request will be retained by the RMBS Servicer or such
Subservicer as additional servicing compensation.
(d) Notwithstanding
the provisions of Subsection 3.01(a), the RMBS Servicer shall not take any
action inconsistent with the interests of the Indenture Trustee or with the
rights and interests of the RMBS Master Servicer under this RMBS Servicing
Agreement.
(e) The
Indenture Trustee shall execute and return to the RMBS Servicer any limited
powers of attorney and other documents in form as provided to the Indenture
Trustee necessary or appropriate to enable the RMBS Servicer to service and
administer the related Mortgage Loans and REO Property.
(f) Notwithstanding
any term to the contrary in this RMBS Servicing Agreement, the RMBS Servicer
may
not waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term, or in any manner grant indulgence to any
Mortgagor unless the RMBS Servicer has obtained the prior written consent of
the
RMBS Master Servicer, which consent shall not be unreasonably withheld. The
RMBS
Master Servicer shall use it best efforts to respond to any such request for
consent by the RMBS Servicer pursuant to this Subsection 3.01(f) within two
(2)
Business Days of receipt of such request.
Section
3.02 Subservicing
Agreements Between RMBS Servicer and Subservicers.
(a) The
RMBS
Servicer may enter into Subservicing Agreements with Subservicers for the
servicing and administration of the Mortgage Loans and for the performance
of
any and all other activities of the RMBS Servicer hereunder. Any subservicing
arrangement and the terms of the related Subservicing Agreement must provide
for
the servicing of such Mortgage Loans in a manner consistent with the servicing
arrangements contemplated hereunder and the RMBS Servicer shall cause any
Subservicer to comply with the provisions of this Agreement (including, without
limitation, to provide the information required to be delivered under Sections
4.06, 4.07 and 4.08 hereof), to the same extent as if such Subservicer were
the
related RMBS Servicer. Each Subservicer shall be either (i) an institution
the
accounts of which are insured by the FDIC or (ii) another entity that engages
in
the business of originating or servicing mortgage loans comparable to the
Mortgage Loans, and in either case shall be authorized to transact business
in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the related
Subservicing Agreement, and in either case shall be a Xxxxxxx Mac or Xxxxxx
Mae
approved mortgage servicer. Any Subservicing Agreement entered into by the
RMBS
Servicer shall include the provision that such Agreement may be terminated
with
or without cause and without the payment of any termination fee by any successor
RMBS Servicer (including, without limitation, the RMBS Master Servicer as
successor RMBS Servicer) under this RMBS Servicing Agreement. In addition,
each
Subservicing Agreement shall provide for servicing of the Mortgage Loans
consistent with the terms of this RMBS Servicing Agreement. The RMBS Servicer
and the Subservicers may enter into Subservicing Agreements and make amendments
to the Subservicing Agreements or enter into different forms of Subservicing
Agreements providing for, among other things, the delegation by the RMBS
Servicer to a Subservicer of additional duties regarding the administration
of
the Mortgage Loans; provided, however, that any such amendments or different
forms shall be consistent with and not violate the provisions of this RMBS
Servicing Agreement, and that no such amendment or different form shall be
made
or entered into which could be reasonably expected to be materially adverse
to
the interests of the Indenture Trustee and the Noteholders, without the consent
of the RMBS Master Servicer.
(b) As
part
of its servicing activities hereunder, the RMBS Servicer, for the benefit of
the
Noteholders, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements and the
pursuit of other appropriate remedies, shall be in such form and carried out
to
such an extent and at such time as the RMBS Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
RMBS Servicer shall pay the costs of such enforcement at its own expense, but
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement only to the extent, if any, that such recovery exceeds all
amounts due in respect of the related Mortgage Loan or (ii) from a specific
recovery of costs, expenses or attorneys’ fees against the party against whom
such enforcement is directed.
(c) The
RMBS
Servicer shall promptly, upon request, provide to the RMBS Master Servicer,
the
Trustee and the Sponsor a written description (in form and substance
satisfactory to the RMBS Master Servicer, the Trustee and the Sponsor) of the
role and function of each Subservicer utilized by the RMBS Servicer, specifying
(i) the identity of each such Subservicer, (ii) which (if any) of such
Subservicer are “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, and (iii) which elements of the Servicing Criteria
will be addressed in assessments of compliance provided by each Subservicer
identified pursuant to clause (ii) of this subsection. The RMBS Servicer shall
be responsible for obtaining from each Subservicer and delivering to the RMBS
Master Servicer any annual statement of compliance, assessment of compliance,
attestation report and Xxxxxxxx-Xxxxx related certification as and when required
to be delivered. The RMBS Servicer shall pay all fees of each of its
Subservicers from its own funds.
Section
3.03 Successor
Subservicers.
The
RMBS
Servicer shall be entitled to terminate any Subservicing Agreement that may
exist in accordance with the terms and conditions of such Subservicing Agreement
subject to the terms of Section 3.02(a) of this RMBS Servicing Agreement;
provided, however, that upon termination, the RMBS Servicer shall either act
as
RMBS Servicer of the related Mortgage Loan or enter into an appropriate contract
with a successor Subservicer and in conformance with the terms of Section
3.02(a) of this RMBS Servicing Agreement pursuant to which such successor
Subservicer will be bound by all relevant terms of the related Subservicing
Agreement and this RMBS Servicing Agreement pertaining to the servicing of
such
Mortgage Loan.
Section
3.04 Liability
of the RMBS Servicer.
(a) Notwithstanding
any Subservicing Agreement, any of the provisions of this RMBS Servicing
Agreement relating to agreements or arrangements between the RMBS Servicer
and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the RMBS Servicer shall under all circumstances remain obligated and primarily
liable to the Indenture Trustee, the Issuing Entity and the Noteholders for
the
servicing and administering of the Mortgage Loans and any REO Property in
accordance with this RMBS Servicing Agreement. The obligations and liability
of
the RMBS Servicer shall not be diminished by virtue of Subservicing Agreements
or by virtue of indemnification of the RMBS Servicer by any Subservicer, or
any
other Person. The obligations and liability of the RMBS Servicer shall remain
of
the same nature and under the same terms and conditions as if the RMBS Servicer
alone were servicing and administering the related Mortgage Loans. The RMBS
Servicer shall, however, be entitled to enter into indemnification agreements
with any Subservicer or other Person and nothing in this RMBS Servicing
Agreement shall be deemed to limit or modify such indemnification. For the
purposes of this RMBS Servicing Agreement, the RMBS Servicer shall be deemed
to
have received any payment on a Mortgage Loan on the date the Subservicer
received such payment; provided, however, that this sentence shall not apply
to
the RMBS Master Servicer as the successor RMBS Servicer.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
shall be deemed to be between the Subservicer and the RMBS Servicer alone,
and
none of the RMBS Master Servicer, the Indenture Trustee, the Issuing Entity
or
the Noteholders shall be deemed a party thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer
except as set forth in Section 3.05.
Section
3.05 Assumption
or Termination of Subservicing Agreements by RMBS Master
Servicer.
(a) If
the
RMBS Master Servicer or a successor RMBS Servicer shall assume the servicing
obligations of the RMBS Servicer in accordance with Section 6.02 below, the
RMBS
Master Servicer or successor RMBS Servicer, to the extent necessary to permit
the RMBS Master Servicer to carry out the provisions of Section 6.02 with
respect to the Mortgage Loans, shall succeed to all of the rights and
obligations of the RMBS Servicer under each of the Subservicing Agreements,
unless such Subservicing Agreements are terminated in accordance with Section
3.02(a) hereof. If such Subservicing Agreements are not terminated, the RMBS
Master Servicer or its designee as the successor master servicer shall be deemed
to have assumed all of the RMBS Servicer’s rights and obligations therein and to
have replaced the RMBS Servicer as a party to such Subservicing Agreements
to
the same extent as if such Subservicing Agreements had been assigned to the
RMBS
Master Servicer or its designee as a successor master servicer, except that
the
RMBS Master Servicer or its designee as a successor RMBS Servicer shall not
be
deemed to have assumed any obligations or liabilities of the RMBS Servicer
arising prior to such assumption (other than the obligation to make Monthly
Advances) and the RMBS Servicer shall not thereby be relieved of any liability
or obligations under such Subservicing Agreements arising prior to such
assumption. Nothing in the foregoing shall be deemed to entitle the RMBS Master
Servicer or its designee as a successor RMBS Servicer at any time to receive
any
portion of the servicing compensation provided under Section 3.15 except for
such portion as the RMBS Servicer would be entitled to receive.
(b) In
the
event that the RMBS Master Servicer or a successor RMBS Servicer assumes the
servicing obligations of the RMBS Servicer under Section 6.02, upon the
reasonable request of the RMBS Master Servicer or such successor RMBS Servicer,
the terminated RMBS Servicer shall at its own expense (or the expense of the
Trust, if the RMBS Servicer fails to do so) deliver to the RMBS Master Servicer,
or to such successor RMBS Servicer photocopies of all documents, files and
records, electronic or otherwise, relating to the Subservicing Agreements and
the related Mortgage Loans or REO Property then being serviced and an accounting
of amounts collected and held by it, if any, and will otherwise cooperate and
use its reasonable efforts to effect the orderly and efficient transfer of
the
Subservicing Agreements, or responsibilities hereunder to the RMBS Master
Servicer, or to such successor RMBS Servicer or the termination of such
Subservicing Agreements in accordance with Section 3.02(a).
Section
3.06 Collection
of Mortgage Loan Payments.
(a) The
RMBS
Servicer will coordinate and monitor remittances by Subservicers to it with
respect to the Mortgage Loans in accordance with this RMBS Servicing
Agreement.
(b) The
RMBS
Servicer shall make its best reasonable efforts to collect or cause to be
collected all payments required under the terms and provisions of the Mortgage
Loans and shall follow, and use its best reasonable efforts to cause
Subservicers to follow, collection procedures comparable to the collection
procedures of prudent mortgage lenders servicing mortgage loans for their own
account to the extent such procedures shall be consistent with this RMBS
Servicing Agreement. Consistent with the foregoing, the RMBS Servicer or the
related Subservicer may in its discretion (i) waive or permit to be waived
any
late payment charge, assumption fee, or any penalty interest in connection
with
the prepayment of a Mortgage Loan and (ii) suspend or reduce or permit to be
suspended or reduced regular monthly payments for a period of up to six months,
or arrange or permit an arrangement with a Mortgagor for a scheduled liquidation
of delinquencies; provided, however, that the RMBS Servicer or the related
Subservicer may permit the foregoing only if it believes, in good faith, that
recoveries of Monthly Payments will be maximized; provided further, however,
that Monthly Payments may not be suspended during the twelve months prior to
the
final maturity of the Notes. In the event the RMBS Servicer or related
Subservicer shall consent to the deferment of the due dates for payments due
on
a Mortgage Note, the RMBS Servicer shall nonetheless make a Monthly Advance
or
shall cause the related Subservicer to make a Monthly Advance to the same extent
as if such installment were due, owing and delinquent and had not been deferred
through liquidation of the Mortgaged Property; provided,
however,
that
the obligation of the RMBS Servicer or the related Subservicer to make a Monthly
Advance shall apply only to the extent that the RMBS Servicer believes, in
good
faith, that such advances are not Nonrecoverable Advances.
(c) Within
five Business Days after the RMBS Servicer has determined that all amounts
which
it expects to recover from or on account of a Mortgage Loan have been recovered
and that no further Liquidation Proceeds will be received in connection
therewith, the RMBS Servicer shall provide to the RMBS Master Servicer and
the
Securities Administrator a certificate of a Servicing Officer that such Mortgage
Loan became a Liquidated Mortgage Loan as of the date of such determination.
The
RMBS Servicer shall provide to the RMBS Master Servicer a monthly summary of
each Mortgage Loan that became a Liquidated Mortgage Loan.
(d) The
RMBS
Servicer shall establish a segregated account in the name of the Indenture
Trustee for the benefit of the Noteholders (the “Protected Account”), which
shall be an Eligible Account, in which the RMBS Servicer shall deposit or cause
to be deposited any amounts representing payments on and any collections in
respect of the Mortgage Loans due subsequent to the Cut-off Date (other than
in
respect of the payments referred to in the following paragraph) within 2
Business Days following receipt thereof (or otherwise on or prior to the Closing
Date), including the following payments and collections received or made by
it
(without duplication):
(i) all
payments of principal, including Principal Prepayments and Prepayment Penalties,
of or interest on the Mortgage Loans (including advances by a Subservicer)
received by the RMBS Servicer directly from Mortgagors or from the respective
Subservicer;
(ii) the
aggregate Repurchase Price of the Mortgage Loans purchased by the RMBS Servicer
pursuant to Section 3.18;
(iii) Net
Liquidation Proceeds;
(iv) all
proceeds of any Mortgage Loans repurchased by the Sponsor pursuant to the
Mortgage Loan Purchase Agreement and all Substitution Adjustment Amounts
required to be deposited in connection with the substitution of an Eligible
Substitute Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement;
(v) Insurance
Proceeds, other than Net Liquidation Proceeds, resulting from any insurance
policy maintained on a Mortgaged Property;
(vi) any
Monthly Advance and any Compensating Interest payments;
(vii) any
other
amounts received by the RMBS Servicer, including any fees or penalties not
retained by a Subservicer, required to be deposited in the Protected Account
pursuant to this RMBS Servicing Agreement;
(viii) the
amount of any losses incurred by the RMBS Servicer with respect to the
investment of funds in the Protected Account; and
(ix) all
prepayment penalties received by the RMBS Servicer directly from Mortgagors
or
from the respective Subservicer.
provided,
however,
that
with respect to each Due Period, the RMBS Servicer shall be permitted to retain
from payments in respect of interest on the Mortgage Loans, the Servicing Fee
for such Due Period. The foregoing requirements respecting deposits to the
Protected Account are exclusive, it being understood that, without limiting
the
generality of the foregoing, the RMBS Servicer need not deposit in the Protected
Account fees (including annual fees or assumption fees) or late charges, payable
by Mortgagors, each as further described in Section 3.15, or amounts received
by
the RMBS Servicer for the accounts of Mortgagors for application towards the
payment of taxes, insurance premiums, assessments and similar items, which
amounts shall be deposited in the related Servicing Account pursuant to Section
3.08. In the event any amount not required to be deposited in the Protected
Account is so deposited, the RMBS Servicer may at any time (prior to being
terminated under this Agreement) withdraw such amount from the Protected
Account, any provision herein to the contrary notwithstanding. The RMBS Servicer
shall keep records that accurately reflect the funds on deposit in the Protected
Account that have been identified by it as being attributable to the Mortgage
Loans and shall hold all collections in the Protected Account for the benefit
of
the Noteholders. The RMBS Servicer shall be entitled to retain all Foreclosure
Profits and shall not be obligated to deposit any Foreclosure Profits in the
Protected Account.
Funds
in
the Protected Account may not be invested with, and shall not be commingled
with, the RMBS Servicer’s own funds or general assets or with funds respecting
payments on mortgage loans or with any other funds not related to the Notes.
Funds in the Protected Account shall be invested solely in Eligible Investments,
designated in the name of the Indenture Trustee for the benefit of the
Noteholders, which shall mature not later than the Business Day next preceding
the RMBS Servicer Remittance Date next following the date of such investment
and
shall not be sold or disposed of prior to maturity. All income and gain realized
from any such investment shall be for the benefit of the RMBS Servicer or the
related Subservicer. The amount of any losses incurred with respect to any
such
investments shall be deposited in the Protected Account by the RMBS Servicer
on
the Business Day prior to the RMBS Servicer Remittance Date.
(e) The
RMBS
Servicer will require each Subservicer to hold all funds constituting
collections on the Mortgage Loans, pending remittance thereof to the RMBS
Servicer, in one or more accounts meeting the requirements of an Eligible
Account, and invested in Eligible Investments, and in the name of the Indenture
Trustee for the benefit of the Noteholders. The related Subservicer shall
segregate and hold all funds collected and received pursuant to each Mortgage
Loan separate and apart from any of its own funds and general assets and any
other funds.
Section
3.07 Withdrawals
from the Protected Account.
(a) The
RMBS
Servicer shall, from time to time as provided herein, make withdrawals from
the
Protected Account of amounts on deposit therein pursuant to Section 3.06 that
are attributable to the Mortgage Loans for the following purposes (without
duplication):
(i) to
remit
to the Securities Administrator, by the RMBS Servicer Remittance Date, all
amounts required to be deposited in the Protected Account as of the close of
business on the related Determination Date;
(ii) to
the
extent deposited to the Protected Account, to reimburse itself or the related
Subservicer for previously unreimbursed expenses incurred in maintaining
individual insurance policies pursuant to Sections 3.10 or 3.11, or Liquidation
Expenses, paid pursuant to Section 3.13 or otherwise reimbursable pursuant
to
the terms of this RMBS Servicing Agreement, such withdrawal right being limited
to amounts received on the related Mortgage Loans (other than any Repurchase
Price in respect thereto) which represent late recoveries of the payments for
which such advances were made, or from related Liquidation
Proceeds;
(iii) to
pay to
itself out of each payment received on account of interest on a Mortgage Loan
as
contemplated by Section 3.15, an amount equal to the related Servicing Fee
(to
the extent not retained pursuant to Section 3.06);
(iv) to
pay to
itself or the Sponsor, with respect to any Mortgage Loan or property acquired
in
respect thereof that has been purchased or otherwise transferred to the Sponsor,
the RMBS Servicer or other entity, all amounts received thereon and not required
to be distributed to Noteholders as of the date on which the related Purchase
Price or Repurchase Price is determined;
(v) to
reimburse the RMBS Servicer or any Subservicer for any Monthly Advance of its
own funds or any advance of such Subservicer’s own funds, the right of the RMBS
Servicer or a Subservicer to reimbursement pursuant to this subclause (v) being
limited to amounts received (including, for this purpose, the Repurchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance or advance was made;
(vi) to
reimburse the RMBS Servicer or any Subservicer from Insurance Proceeds,
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the RMBS Servicer or such Subservicer pursuant to Section 3.13 in good faith
in connection with the restoration of the related Mortgaged Property which
was
damaged by the Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(vii) to
pay
the RMBS Servicer or any Subservicer (payment to any Subservicer to be subject
to prior payment to the RMBS Servicer of an amount equal to the Servicing Fee),
as appropriate, from Liquidation Proceeds or Insurance Proceeds received in
connection with the liquidation of any Mortgage Loan, the amount which it or
such Subservicer would have been entitled to receive under subclause (iii)
of
this Subsection 3.07(a) as servicing compensation on account of each defaulted
Monthly Payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor, but only to the extent that the aggregate of Liquidation Proceeds
and
Insurance Proceeds with respect to such Mortgage Loan, after any reimbursement
to the RMBS Servicer or any Subservicer, pursuant to other subclauses of this
Subsection 3.07(a), exceeds the outstanding Stated Principal Balance of such
Mortgage Loan plus accrued and unpaid interest thereon at the related Mortgage
Rate less the Servicing Fee Rate to but not including the date of payment (in
any event, the aggregate amount of servicing compensation received by a
Subservicer and the RMBS Servicer with respect to any defaulted Monthly Payment
shall not exceed the applicable Servicing Fee);
(viii) to
reimburse the RMBS Servicer or any Subservicer for any Nonrecoverable Advance
previously made, and not otherwise reimbursed pursuant to this Subsection
3.07(a);
(ix) to
withdraw any other amount deposited in the Protected Account that was not
required to be deposited therein pursuant to Section 3.06;
(x) to
reimburse the RMBS Servicer for costs incurred by it associated with the
environmental report specified in Section 3.13(e);
(xi) to
pay
the LPMI Insurer fee; and
(xii) to
clear
and terminate the Protected Account following a termination of the Trust
pursuant to Section 8.01 of the Trust Agreement.
In
connection with withdrawals pursuant to clauses (ii), (iii), (iv), (v), (vi)
and
(vii), the RMBS Servicer’s entitlement thereto is limited to collections or
other recoveries on the related Mortgage Loan, and the RMBS Servicer shall
keep
and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis,
for
the purpose of justifying any withdrawal from the Protected Account pursuant
to
such clauses. Notwithstanding any other provision of this RMBS Servicing
Agreement, the RMBS Servicer shall be entitled to reimburse itself for any
previously unreimbursed expenses incurred pursuant to Section 3.13 or otherwise
reimbursable expenses incurred pursuant to the terms of this RMBS Servicing
Agreement, but only to the extent of collections or other recoveries on the
related Mortgage Loan.
(b) Notwithstanding
the provisions of this Section 3.07, the RMBS Servicer may, but is not required
to, allow the Subservicers to deduct from amounts received by them or from
the
related account maintained by a Subservicer, prior to deposit in the Protected
Account, any portion to which such Subservicers are entitled hereunder as
servicing compensation (including income on Eligible Investments) or
reimbursement of any reimbursable Servicing Advances made by such
Subservicers.
(c) The
RMBS
Servicer shall pay to the Securities
Administrator
interest
on any payments to the Payment Account which were due on a RMBS Servicer
Remittance Date but were made after the related RMBS Servicer Remittance Date
at
a rate equal to the federal funds rate from the date due to the date paid,
both
inclusive. This interest shall be solely an obligation of the RMBS Servicer
and
shall not be recoverable by the Securities Administrator from the Trust or
from
any other source.
Section
3.08 Collection
of Taxes Assessments and Similar Items; Servicing Accounts.
(a) The
RMBS
Servicer shall establish and maintain or cause the related Subservicer to
establish and maintain, one or more Servicing Accounts. The RMBS Servicer or
a
Subservicer will deposit and retain therein all collections from the Mortgagors
for the payment of taxes, assessments, insurance premiums, or comparable items
as agent of the Mortgagors.
(b) The
deposits in the Servicing Accounts shall be held in trust by the RMBS Servicer
or a Subservicer (and its successors and assigns) in the name of the Indenture
Trustee for the benefit of the Noteholders. Such Servicing Accounts shall be
Eligible Accounts and if permitted by applicable law, invested in Eligible
Investments held in trust by the RMBS Servicer or a Subservicer as described
above and maturing, or be subject to redemption or withdrawal, no later than
the
date on which such funds are required to be withdrawn, and in no event later
than 45 days after the date of investment; withdrawals of amounts from the
Servicing Accounts may be made only to effect timely payment of taxes,
assessments, insurance premiums, or comparable items, to reimburse the RMBS
Servicer or a Subservicer for any advances made with respect to such items,
to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required, to Mortgagors on balances in the Servicing Accounts
or to
clear and terminate the Servicing Accounts at or any time after the termination
of this RMBS Servicing Agreement.
Section
3.09 Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
RMBS
Servicer shall provide, and shall cause any Subservicer to provide, to the
RMBS
Master Servicer, the Owner Trustee and the Indenture Trustee or its designee
access to the documentation regarding the related Mortgage Loans and REO
Property and to the Noteholders, the FDIC, and the supervisory agents and
examiners of the FDIC access to the documentation regarding the related Mortgage
Loans required by applicable regulations, such access being afforded without
charge but only upon reasonable request and during normal business hours at
the
offices of the RMBS Servicer or the Subservicers that are designated by these
entities; provided,
however,
that,
unless otherwise required by law, the RMBS Servicer or the Subservicer shall
not
be required to provide access to such documentation if the provision thereof
would violate the legal right to privacy of any Mortgagor; provided,
further,
however,
that
the RMBS Master Servicer, the Owner Trustee and the Indenture Trustee shall
coordinate their requests for such access so as not to impose an unreasonable
burden on, or cause an unreasonable interruption of, the business of the RMBS
Servicer or any Subservicer. The RMBS Servicer and the Subservicers shall allow
representatives of the above entities to photocopy any of the documentation
and
shall provide equipment for that purpose at a charge that covers their own
actual out-of-pocket costs.
Section
3.10 Maintenance
of Primary Insurance Policies; Collection Thereunder.
The
RMBS
Servicer shall, or shall cause the related Subservicer to, exercise its best
reasonable efforts to maintain and keep in full force and effect each Primary
Insurance Policy by a Qualified Insurer with respect to each Mortgage Loan
as to
which as of the Cut-off Date a Primary Insurance Policy was in effect and the
original principal amount of the related Mortgage Note exceeded 80% of the
Original Value in an amount at least equal to the excess of such original
principal amount over 75% of such Original Value until the principal amount
of
any such first lien Mortgage Loan is reduced below 80% of the Original Value
or,
based upon a new appraisal, the principal amount of such first lien Mortgage
Loan represents less than 80% of the new appraised value of the related
Mortgaged Property. The RMBS Servicer shall, or shall cause the related
Subservicer to, effect the timely payment of the premium on each Primary
Insurance Policy. The RMBS Servicer and the related Subservicer shall have
the
power to substitute for any Primary Insurance Policy another substantially
equivalent policy issued by another Qualified Insurer.
Section
3.11 Maintenance
of Hazard Insurance and Fidelity Coverage.
(a) The
RMBS
Servicer shall maintain and keep, or cause each Subservicer to maintain and
keep, with respect to each Mortgage Loan and REO Property, in full force and
effect hazard insurance (fire insurance with extended coverage) equal to at
least the lesser of the Stated Principal Balance of the Mortgage Loan (including
any cumulative related Negative Amortization) or the current replacement cost
of
the related Mortgaged Property, and containing a standard mortgagee clause,
provided,
however,
that
the amount of hazard insurance may not be less than the amount necessary to
prevent loss due to the application of any co-insurance provision of the related
policy. Unless applicable state law requires a higher deductible, the deductible
on such hazard insurance policy may be no more than $1,000 or 1% of the
applicable amount of coverage, whichever is less. In the case of a condominium
unit or a unit in a planned unit development, the required hazard insurance
shall take the form of a multi-peril policy covering the entire condominium
project or planned unit development, in an amount equal to at least 100% of
the
insurable value based on replacement cost.
(b) Any
amounts collected by the RMBS Servicer or a Subservicer under any such hazard
insurance policy (other than amounts to be applied to the restoration or repair
of the Mortgaged Property or amounts released to the Mortgagor in accordance
with the RMBS Servicer’s or a Subservicer’s normal servicing procedures, the
Mortgage Note, the Security Instrument or applicable law) shall be deposited
initially in a Protected Account, for transmittal to the Payment Account,
subject to withdrawal pursuant to Section 3.07.
(c) Any
cost
incurred by a RMBS Servicer or a Subservicer in maintaining any such hazard
insurance policy shall not be added to the amount owing under the Mortgage
Loan
for the purpose of calculating monthly distributions to the Securities
Administrator, notwithstanding that the terms of the Mortgage Loan so permit.
Such costs shall be recoverable by the RMBS Servicer or a Subservicer out of
related late payments by the Mortgagor or out of Insurance Proceeds or
Liquidation Proceeds or by the RMBS Servicer from the Repurchase Price, or
as
otherwise provided in Section 3.07.
(d) No
earthquake or other additional insurance is to be required of any Mortgagor
or
maintained on property acquired with respect to a Security Instrument other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and shall require such additional insurance. When, at the time of
origination of a Mortgage Loan or at any subsequent time, the Mortgaged Property
is located in a federally designated special flood hazard area, the RMBS
Servicer shall use its best reasonable efforts to cause with respect to the
related Mortgage Loans and each REO Property flood insurance (to the extent
available and in accordance with mortgage servicing industry practice) to be
maintained. Such flood insurance shall cover the related Mortgaged Property,
including all items taken into account in arriving at the Appraised Value on
which the related Mortgage Loan was based, and shall be in an amount equal
to
the lesser of (i) the Stated Principal Balance of the related Mortgage Loan
(including any cumulative related Negative Amortization) and (ii) the minimum
amount required under the terms of coverage to compensate for any damage or
loss
on a replacement cost basis, but not more than the maximum amount of such
insurance available for the related Mortgaged Property under either the regular
or emergency programs of the National Flood Insurance Program (assuming that
the
area in which such Mortgaged Property is located is participating in such
program). Unless applicable state law requires a higher deductible, the
deductible on such flood insurance may not exceed $1,000 or 1% of the applicable
amount of coverage, whichever is less.
(e) If
insurance has not been maintained complying with Subsections 3.11 (a) and (d)
and there shall have been a loss which would have been covered by such insurance
had it been maintained, the RMBS Servicer shall pay, or cause the related
Subservicer to pay, for any necessary repairs.
(f) The
RMBS
Servicer shall present, or cause the related Subservicer to present, claims
under any applicable Primary Insurance Policy, Lender Paid Mortgage Insurance
Policy or the related hazard insurance or flood insurance policy.
(g) The
RMBS
Servicer shall obtain and maintain at its own expense and for the duration
of
this RMBS Servicing Agreement and shall cause each Subservicer to obtain and
maintain a blanket fidelity bond and an errors and omissions insurance policy
covering such Person’s officers, employees and other persons acting on its
behalf in connection with its activities under this RMBS Servicing Agreement
or
the related Subservicing Agreement. The amount of coverage shall be at least
equal to the coverage maintained by the RMBS Servicer acceptable to Xxxxxx
Xxx
or Xxxxxxx Mac to service loans for it or otherwise in an amount as is
commercially available at a cost that is generally not regarded as excessive
by
industry standards. The RMBS Servicer shall promptly notify the RMBS Master
Servicer of any material change in the terms of such bond or policy. The RMBS
Servicer shall provide annually to the RMBS Master Servicer a certificate of
insurance that each such bond and policy are in effect. If any such bond or
policy ceases to be in effect, the RMBS Servicer shall, to the extent possible,
give the RMBS Master Servicer ten days’ notice prior to any such cessation and
the RMBS Servicer shall use its reasonable best efforts to obtain a comparable
replacement bond or policy, as the case may be. Any amounts relating to the
Mortgage Loans collected under each such bond or policy shall be deposited
initially in a Protected Account for transmittal to the Payment Account, subject
to withdrawal pursuant to Section 3.07.
Section
3.12 Due-on-Sale
Clauses; Assumption Agreements.
(a) In
any
case in which the RMBS Servicer is notified by any Mortgagor or Subservicer
that
a Mortgaged Property relating to a Mortgage Loan has been or is about to be
conveyed by the Mortgagor, the RMBS Servicer shall enforce, or shall instruct
such Subservicer to enforce, any due-on-sale clause contained in the related
Security Instrument to the extent permitted under the terms of the related
Mortgage Note and by applicable law. The RMBS Servicer or the related
Subservicer may repurchase a Mortgage Loan at the Repurchase Price when the
RMBS
Servicer requires acceleration of the Mortgage Loan, but only if the RMBS
Servicer is satisfied, as evidenced by an Officer’s Certificate delivered to the
RMBS Master Servicer, that either (i) such Mortgage Loan is in default or
default is reasonably foreseeable or (ii) if such Mortgage Loan is not in
default or default is not reasonably foreseeable, such repurchase will have
no
adverse tax consequences for the Trust Estate or any Securityholder. If the
RMBS
Servicer reasonably believes that such due-on-sale clause cannot be enforced
under applicable law or if the Mortgage Loan does not contain a due-on-sale
clause, the RMBS Servicer is authorized, and may authorize any Subservicer,
to
consent to a conveyance subject to the lien of the Mortgage, and to take or
enter into an assumption agreement from or with the Person to whom such property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the related Mortgage Note and unless prohibited by applicable
state
law, such Mortgagor remains liable thereon, on condition, however, that the
related Mortgage Loan shall continue to be covered by a hazard policy and (if
so
covered before the RMBS Servicer or the related Subservicer enters into such
agreement) by any Primary Insurance Policy. In connection with any such
assumption, no material term of the related Mortgage Note may be changed. The
RMBS Servicer shall forward to the Indenture Trustee the original copy of such
assumption agreement, which copy shall be added by the Indenture Trustee to
the
related Mortgage File and which shall, for all purposes, be considered a part
of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. A portion, equal to up to 2% of the Stated
Principal Balance of the related Mortgage Loan, of any fee or additional
interest collected by the RMBS Servicer or the related Subservicer for
consenting in any such conveyance or entering into any such assumption agreement
may be retained by the RMBS Servicer or related Subservicer as additional
servicing compensation.
(b) Notwithstanding
the foregoing paragraph or any other provision of this RMBS Servicing Agreement,
the RMBS 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 conveyance by the Mortgagor of the related
Mortgaged Property or assumption of a Mortgage Loan which the RMBS Servicer
reasonably believes it may be restricted by law from preventing, for any reason
whatsoever or if the exercise of such right would impair or threaten to impair
any recovery under any applicable insurance policy.
Section
3.13 Realization
Upon Defaulted Mortgage Loans.
(a) The
RMBS
Servicer shall, or shall direct the related Subservicer to, foreclose upon
or
otherwise comparably convert the ownership of properties securing any Mortgage
Loans that come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.06, except that the RMBS Servicer shall not, and shall not direct
the
related Subservicer to, foreclose upon or otherwise comparably convert a
Mortgaged Property if there is evidence of toxic waste or other environmental
hazards thereon unless the RMBS Servicer follows the procedures in Subsection
(e) below. The
RMBS
Servicer, on behalf of the Trust, may also, in its discretion, as an alternative
to foreclosure, sell defaulted Mortgage Loans at fair market value to
third-parties, if the RMBS Servicer reasonably believes that such sale would
maximize proceeds to the Trust (on a present value basis) with respect to each
such Mortgage Loan.
(b) The
RMBS
Servicer shall foreclose or shall direct the related Subservicer to foreclose
on
any Mortgaged Property in the name of the Indenture Trustee for the benefit
of
the Noteholders.
(c) In
connection with such foreclosure or other conversion, the RMBS Servicer in
conjunction with the related Subservicer, if any, shall use its best reasonable
efforts to preserve REO Property and to realize upon defaulted Mortgage Loans
in
such manner (including short sales) as to maximize the receipt of principal
and
interest by the Noteholders, taking into account, among other things, the timing
of foreclosure and the considerations set forth in Subsection 3.13(d). The
foregoing is subject to the proviso that the RMBS Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines in good faith (i) that such
restoration or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan to the Noteholders after reimbursement to itself for such expenses
and (ii) that such expenses will be recoverable to it either through Liquidation
Proceeds (respecting which it shall have priority for purposes of reimbursements
from the Protected Account pursuant to Section 3.07) or through Insurance
Proceeds (respecting which it shall have similar priority). The RMBS Servicer
shall be responsible for all other costs and expenses incurred by it in any
such
proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof (as well as its normal servicing
compensation). Any income from or other funds (net of any income taxes)
generated by REO Property shall be deemed for purposes of this RMBS Servicing
Agreement to be Insurance Proceeds.
(d) The
Trust
Estate shall not acquire any real property (or any personal property incident
to
such real property) except in connection with a default or reasonably
foreseeable default of a Mortgage Loan. In the event that the Trust Estate
acquires any real property (or personal property incident to such real property)
in connection with a default or imminent default of a Mortgage Loan, such
property shall be disposed of by the RMBS Servicer (or its agent) on behalf
of
the Trust Estate within two years after its acquisition by the Trust
Estate.
(e) With
respect to any Mortgage Loan as to which the RMBS Servicer or a Subservicer
has
received notice of, or has actual knowledge of, the presence of any toxic or
hazardous substance on the Mortgaged Property, the RMBS Servicer shall promptly
notify the RMBS Master Servicer and shall act in accordance with any directions
and instructions provided by the RMBS Master Servicer. If the RMBS Master
Servicer has not provided directions and instructions to the RMBS Servicer
in
connection with any such Mortgage Loan within 30 days of a request by the RMBS
Servicer for such directions and instructions, then the RMBS Servicer shall
take
such action as it deems to be in the best economic interest of the Trust Estate
(other than proceeding against the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from
the
lien of the related Mortgage. The parties hereto acknowledge that the RMBS
Servicer shall not obtain on behalf of the Issuing Entity a deed as a result
or
in lieu of foreclosure, and shall not otherwise acquire possession of or title
to, or commence any proceedings to acquire possession of or title to, or take
any other action with respect to, any Mortgaged Property, if the RMBS Master
Servicer, the Owner Trustee or the Indenture Trustee could reasonably be
considered to be a responsible party for any liability arising from the presence
of any toxic or hazardous substance on the Mortgaged Property.
Section
3.14 Indenture
Trustee to Cooperate; Release of Mortgage Files.
(a) Upon
payment in full of any Mortgage Loan or the receipt by the RMBS Servicer of
a
notification that payment in full will be escrowed in a manner customary for
such purposes, the RMBS Servicer will immediately notify the Indenture Trustee
by a certification signed by a Servicing Officer in the form of the request
for
release “Request for Release”) attached hereto as Exhibit B (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited
in
the Protected Account have been so deposited) and shall request delivery to
the
RMBS Servicer or Subservicer, as the case may be, of the related Mortgage File.
Upon receipt of such certification and request, the Indenture Trustee shall
release the related Mortgage File to the RMBS Servicer or Subservicer and
execute and deliver to the RMBS Servicer, without recourse, representation
or
warranty the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Security
Instrument (furnished by the RMBS Servicer), together with the Mortgage Note.
In
connection with the satisfaction of any MOM Loan, the RMBS Servicer is
authorized to cause the removal from the registration on the MERS7
System
of such Mortgage.
(b) From
time
to time as is appropriate, for the servicing or foreclosure of any Mortgage
Loan
or collection under an insurance policy, the RMBS Servicer may deliver to the
Indenture Trustee a Request for Release signed by a Servicing Officer on behalf
of the RMBS Servicer in substantially the form attached as Exhibit B hereto.
Upon receipt of the Request for Release, the Indenture Trustee shall deliver
the
Mortgage File or any document therein to the RMBS Servicer or Subservicer,
as
the case may be, as bailee for the Indenture Trustee.
(c) The
RMBS
Servicer shall cause each Mortgage File or any document therein released
pursuant to Subsection 3.14(b) to be returned to the Indenture Trustee when
the
need therefor no longer exists, and in any event within 21 days of the RMBS
Servicer’s receipt thereof, unless the Mortgage Loan has become a Liquidated
Mortgage Loan and the Liquidation Proceeds relating to the Mortgage Loan have
been deposited in the Protected Account or such Mortgage File is being used
to
pursue foreclosure or other legal proceedings. Prior to return of a Mortgage
File or any document to the Indenture Trustee, the RMBS Servicer, the related
insurer or Subservicer to whom such file or document was delivered shall retain
such file or document in its respective control as bailee for the Indenture
Trustee unless the Mortgage File or such document has been delivered to an
attorney, or to a public trustee or other public official as required by law,
to
initiate or pursue legal action or other proceedings for the foreclosure of
the
related Mortgaged Property either judicially or non- judicially, and the RMBS
Servicer has delivered to the Indenture Trustee a certificate of a Servicing
Officer certifying as to the name and address of the Person to which such
Mortgage File or such document was delivered and the purpose or purposes of
such
delivery. If a Mortgage Loan becomes a Liquidated Mortgage Loan, the RMBS
Servicer shall deliver the Request for Release with respect thereto to the
Indenture Trustee and, upon deposit of the related Liquidation Proceeds in
the
Protected Account, as certified to the Indenture Trustee, the Indenture Trustee,
shall deliver the related Mortgage File or any document therein to the RMBS
Servicer or Subservicer, as applicable.
(d) The
Indenture Trustee shall execute and deliver to the RMBS Servicer any court
pleadings, requests for trustee’s sale or other documents prepared and delivered
to the Indenture Trustee for execution necessary to (i) the foreclosure or
trustee’s sale with respect to a Mortgaged Property; (ii) any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Security Instrument; (iii) obtain a deficiency judgment against the Mortgagor;
or (iv) enforce any other rights or remedies provided by the Mortgage Note
or
Security Instrument or otherwise available at law or equity. Together with
such
documents or pleadings the RMBS Servicer shall deliver to the Indenture Trustee
a certificate of a Servicing Officer in which it requests the Indenture Trustee
to cause to be executed the pleadings or documents. The Indenture Trustee and
any officer, director, employee or agent of the Indenture Trustee may rely
in
good faith on any such document submitted by the RMBS Servicer. The certificate
shall certify and explain the reasons for which the pleadings or documents
are
required. It shall further certify that the execution and delivery of the
pleadings or documents will not invalidate any insurance coverage under the
insurance policies or invalidate or otherwise affect the lien of the Security
Instrument, except for the termination of such a lien upon completion of the
foreclosure or trustee’s sale.
Section
3.15 Servicing
Compensation.
(a) As
compensation for its activities hereunder, the RMBS Servicer shall be entitled
to receive the Servicing Fee from full payments of accrued interest on each
Mortgage Loan or as otherwise provided in Section 3.07. The RMBS Servicer shall
be solely responsible for paying any and all fees with respect to a Subservicer
and neither the RMBS Master Servicer nor the Indenture Trustee shall bear any
fees, expenses or other costs directly associated with any
Subservicer.
(b) The
RMBS
Servicer may retain additional servicing compensation in the form of a portion
of the assumption fees, up to 2% of the Stated Principal Balance of the related
Mortgage Loan, fees for statement of account or payoff, late payment charges
or
otherwise, to the extent such fees are collected from the related Mortgagors
or,
with respect to a Liquidated Mortgage Loan, to the extent such fees have
accrued. The RMBS Servicer shall be required to pay all expenses it incurs
in
connection with servicing activities under this RMBS Servicing Agreement and
shall not be entitled in connection with servicing activities under this RMBS
Servicing Agreement to reimbursement except as provided in this RMBS Servicing
Agreement. Expenses to be paid by the RMBS Servicer under this Subsection
3.15(b) shall include payment of the expenses of the accountants retained
pursuant to Section 3.17.
Section
3.16 Reserved.
Section
3.17 Reserved.
Section
3.18 Optional
Purchase of Defaulted Mortgage Loans.
(a) The
RMBS
Servicer may, but is not obligated to, repurchase from the Issuer any Mortgage
Loan delinquent in payment for a period of 90 days or longer for a price equal
to the Repurchase Price. Notwithstanding the foregoing, the Indenture Trustee,
whether acting as Indenture Trustee or in the capacity of successor RMBS Master
Servicer, shall have no obligation hereunder or under any other Basic Document
to repurchase any Mortgage Loan.
(b) The
RMBS
Servicer shall have the option at any one time to purchase a minimum of five
(5)
Mortgage Loans from the Trust Estate with an aggregate Stated Principal Balance
up to 1% of the aggregate Stated Principal Balance of all of the Mortgage Loans
included in the Trust Estate on such date at a price equal to the aggregate
fair
market value of such Mortgage Loans.
In the
event that this option is exercised as to any five or more Mortgage Loans,
this
option will thereupon terminate. This option is not revocable by the RMBS
Servicer.
Section
3.19 Information
Required by the Internal Revenue Service Generally and Reports of Foreclosures
and Abandonments of Mortgaged Property.
The
RMBS
Servicer shall prepare and deliver all federal and state information reports
when and as required by all applicable state and federal income tax laws. In
particular, with respect to the requirement under Section 6050J of the Code
to
the effect that the RMBS Servicer or a Subservicer shall make reports of
foreclosures and abandonments of any mortgaged property for each year beginning
in 2006, the RMBS Servicer or Subservicer shall file reports relating to each
instance occurring during the previous calendar year in which the RMBS Servicer
or such Subservicer (i) acquires an interest in any Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction
of a
Mortgage Loan, or (ii) knows or has reason to know that any Mortgaged Property
has been abandoned. The reports from the RMBS Servicer or Subservicer shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
Section 6050J, Section 6050H (reports relating to mortgage interest received)
and Section 6050P of the Code (reports relating to cancellation of
indebtedness).
Section
3.20 Fair
Credit Reporting Act.
The
RMBS
Servicer, in its capacity as RMBS Servicer for each Mortgage Loan, agrees to
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 Equifax, Experian and Trans Union
Credit Information Company (three of the credit reporsitories), on a monthly
basis.
Section
3.21 Waiver
of Prepayment Charges.
Except
as
provided below, the RMBS Servicer or any designee of the RMBS Servicer shall
not
waive any prepayment charge with respect to any Mortgage Loan. If the RMBS
Servicer or any Subservicer fails to collect a prepayment charge at the time
of
the related prepayment of any Mortgage Loan subject to such prepayment charge,
the RMBS Servicer shall deposit to the Protected Account at the time of payoff
an amount equal to the amount of the prepayment charge not collected.
Notwithstanding the above, the RMBS Servicer or any Subservicer may waive a
prepayment charge only if (i) such waiver is standard and customary in servicing
similar mortgage loans to the Mortgage Loans (including any waiver of a
prepayment charge in connection with a refinancing of a Mortgage Loan related
to
a default or a reasonably foreseeable default), and (ii) such waiver, in the
reasonable judgment of the RMBS Servicer, would maximize recovery of total
proceeds from the Mortgage Loan, taking into account the value of such
prepayment charge and the related Mortgage Loan. In no event will the RMBS
Servicer waive a prepayment charge in connection with a refinancing of a
Mortgage Loan that is not related to a default or a reasonably foreseeable
default. If a prepayment charge is waived as permitted by meeting the standards
described above, then the RMBS Servicer is required to pay the amount of such
waived prepayment charge, for the benefit of the Holders of the Class N Notes,
by depositing such amount into the Protected Account together with and at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Protected Account.
Within
90
days of the earlier of discovery by the RMBS Servicer or receipt of notice
by
the RMBS Servicer of the breach of the representation or covenant of the RMBS
Servicer set forth in this Section 3.21 which materially and adversely affects
the interests of the Holders of the Class P Notes in any prepayment charge,
the
RMBS Servicer shall remedy such breach as follows: if any of the covenants
made
by the RMBS Servicer in this Section 3.21 is breached, the RMBS Servicer must
pay the amount of such waived prepayment charge, for the benefit of the Holders
of the Class P Notes, by depositing such amount into the Protected
Account.
ARTICLE
IV
SERVICING
CERTIFICATE
Section
4.01 Remittance
Reports.
Not
later
than the tenth (10th) calendar day, or if such day is not a Business Day, the
first Business Day immediately preceding the tenth calendar day of the month
of
the related Remittance Date, the RMBS Servicer shall furnish to the RMBS Master
Servicer, a monthly remittance advice in the format set forth in Exhibit D
attached hereto (or in such other format mutually agreed to by the RMBS Master
Servicer and the RMBS Servicer), with regard to monthly loan remittance data
and
a report containing the information required by Exhibit E (or in such other
format mutually agreed to by the RMBS Master Servicer and the RMBS Servicer)
with respect to defaulted mortgage loans, with a trial balance report attached
thereto, and such other loan level information reasonably available to the
RMBS
Servicer and requested by the RMBS Master Servicer.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Indenture Trustee pursuant to a deed-in-lieu of foreclosure, the RMBS Servicer
shall submit to the RMBS Master Servicer a liquidation report in the format
set
forth in Exhibit F attached hereto (or in such other format mutually agreed
to
by the RMBS Servicer and RMBS Master Servicer) with respect to such Mortgaged
Property and all supporting documentation reasonably required by the Master
RMBS
Servicer. The RMBS Master Servicer shall review and approve all Realized Loss
calculations contained in such liquidation report.
The RMBS
Servicer shall also provide reports on the status of REO Property containing
such information as the RMBS Master Servicer may reasonably
require.
Section
4.02 Reserved.
Section
4.03 Reserved.
Section
4.04 Advances.
If
any
Monthly Payment on a Mortgage Loan that was due on the immediately preceding
Due
Date or due during the related Due Period and delinquent on a Determination
Date
is delinquent other than as a result of application of the Relief Act, the
RMBS
Servicer will deposit in the Protected Account not later than the related RMBS
Servicer Remittance Date an amount equal to such Monthly Payment net of the
related Servicing Fee for such Mortgage Loan, except to the extent the RMBS
Servicer or
the
related Subservicer determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on any Mortgage
Loan. Subject to the foregoing and in the absence of such a determination,
the
RMBS Servicer shall continue to make such advances through the date that the
related Mortgaged Property or REO Property has, in the judgment of the RMBS
Servicer, been completely liquidated. No later than the fourth Business Day
preceding each Payment Date, the RMBS Servicer shall present an Officer’s
Certificate to the RMBS Master Servicer with respect to the Mortgage Loans,
(i)
stating that the RMBS Servicer elects not to make a Monthly Advance in a stated
amount and (ii) detailing the reason it deems the advance to be a Nonrecoverable
Advance. The RMBS Servicer will include in the Remittance Report a list of
each
Mortgage Loan for which it does not make a Monthly Advance in accordance with
this Section.
Such
Monthly Advances may be made in whole or in part from funds in the Protected
Account being held for future distribution or withdrawal on or in connection
with Payment Dates in subsequent months. Any funds being held for future
distribution to Securityholders and so used shall be replaced by the RMBS
Servicer from its own funds by deposit in the Protected Account prior to the
related RMBS Servicer Remittance Date to the extent that funds in the Protected
Account with respect to the related Payment Date shall be less than payments
to
Securityholders required to be made on such date.
Section
4.05 Compensating
Interest Payments.
The
RMBS
Servicer shall deposit in the Protected Account not later than the RMBS Servicer
Remittance Date an amount equal to the Compensating Interest for the related
Determination Date. The RMBS Servicer shall not be entitled to any reimbursement
of any Compensating Interest payment.
Section
4.06 RMBS
Servicer Compliance Statement.
(a) The
RMBS
Servicer, at its own expense, shall deliver (and shall cause any Servicing
Function Participant engaged by it to deliver) to the Sponsor, the Securities
Administrator and the Depositor on or before March 15 of each year, commencing
in March 2007, an Officer’s
Certificate stating, as to the signer thereof, that (A) a review of such party’s
activities during the preceding calendar year or portion thereof and of such
party’s performance under this RMBS Servicing Agreement, or such other
applicable agreement in the case of any Servicing Function Participant engaged
by it, has been made under such officer’s supervision and (B) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this RMBS Servicing Agreement or such other applicable
agreement in the case of any Servicing Function Participant engaged by it,
in
all material respects throughout such year or portion thereof, or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof Promptly after receipt of each such Officer’s Certificate, the Sponsor
and
RMBS
Master Servicer shall review such Officer’s Certificate and, if applicable,
consult with each such party,
as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of any Servicing
Function Participant engaged by it, under such other applicable
agreement.
(b) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the RMBS Servicer to comply timely with this Section 4.06 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the RMBS Master Servicer shall,
at the
direction of the Sponsor, terminate all the rights and obligations of the RMBS
Servicer under this RMBS Servicing Agreement and in and to the Mortgage Loans
and the proceeds thereof without compensating the RMBS Servicer for the same.
This paragraph shall supersede any other provision in this RMBS Servicing
Agreement or any other agreement to the contrary.
(c) Unless
available on the RMBS Servicer’s or the Securities Administrator’s website,
copies of such RMBS Servicer annual statements of compliance shall be provided
to any Noteholder
upon request, by the RMBS Servicer or by the RMBS
Master Servicer at the RMBS Servicer’s expense if the RMBS Servicer failed to
provide such copies (unless (i) the RMBS Servicer shall have failed to provide
the RMBS Master Servicer with such statement or (ii) the RMBS Master Servicer
shall be unaware of the RMBS Servicer’s failure to provide such
statement).
Section
4.07 Report
on Assessments of Compliance and Attestation.
(a) By
March
15 of each year, commencing in March 2007, the RMBS Servicer, at its own
expense, shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the RMBS
Master Servicer, the Securities Administrator and the Sponsor, a report on
an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria with respect to the prior calendar year, including, if there has been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) No
later
than the end of each calendar year for which a Form 10-K is required to be
filed, the RMBS Servicer shall forward to the RMBS Master Servicer and the
Securities Administrator the name of each Servicing Function Participant engaged
by it and what Relevant Servicing Criteria will be addressed in the report
on
assessment of compliance prepared by such Servicing Function Participant. When
the RMBS Servicer (or any Servicing Function Participant engaged by it) submits
its assessments to the RMBS Master Servicer and Securities Administrator, it
shall also at such time include the assessment (and attestation pursuant to
Section 4.08) of each Servicing Function Participant engaged by it.
(c) The
RMBS
Servicer shall not be required to deliver any such assessments until April
15 in
any given year so long as it has received written confirmation from the
Securities Administrator that a Form 15 relating to the automatic suspension
of
reporting in respect of the Issuing Entity under the Exchange Act has been
filed.
(d) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the RMBS Servicer to comply timely with this Section 4.07 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the RMBS Master Servicer shall, at the direction of the Sponsor,
terminate all the rights and obligations of the RMBS Servicer under this RMBS
Servicing Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the RMBS Servicer for the same. This paragraph shall
supersede any other provision in this RMBS Servicing Agreement or any other
agreement to the contrary.
Section
4.08 Attestation
Reports.
(a) By
March
15 of each year, commencing in March 2007, the RMBS Servicer, at its own
expense, shall cause, and each such party shall cause any Servicing Function
Participant engaged by it to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the RMBS Servicer
or
such other Servicing Function Participants, as the case may be) and that is
a
member of the American Institute of Certified Public Accountants to furnish
a
report to the RMBS Master Servicer, the Securities Administrator and the
Sponsor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
(b) None
of
the RMBS Servicer or any Servicing Function Participant engaged by it shall
be
required to deliver or cause the delivery of such reports until April 15 in
any
given year so long as it has received written confirmation from from the
Securities Administrator that a Form 15 relating to the automatic suspension
of
reporting in respect of the Issuing Entity under the Exchange Act has been
filed.
(c) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the RMBS Servicer to comply timely with this Section 4.08 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the RMBS Master Servicer shall, at the direction of the Sponsor,
terminate all the rights and obligations of the RMBS Servicer under this RMBS
Servicing Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the RMBS Servicer for the same. This paragraph shall
supersede any other provision in this RMBS Servicing Agreement or any other
agreement to the contrary.
Section
4.09 Annual
Certification.
(a) The
RMBS
Servicer shall and shall cause any Servicing Function Participant engaged by
such party to, provide to the Depositor, by March 15 of each year in which
the
Issuing Entity is subject to the reporting requirements of the Exchange Act
and
otherwise within a reasonable period of time upon request, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit C,
upon which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. In the event the RMBS Servicer or any Servicing Function
Participant engaged by such party, is terminated or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may
be,
such party shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 4.09 with respect to the period of time it was subject
to this RMBS Servicing Agreement or any other applicable agreement, as the
case
may be.
Section
4.10 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 4.06, 4.07,
34.08 and 4.09 of this RMBS Servicing Agreement is to facilitate compliance
by
the Issuing Entity, the Sponsor, the RMBS Master Servicer and the Securities
Administrator with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance issued by the Commission
in
respect of the requirements of Regulation AB, (c) the parties shall comply
with
requests made by the Sponsor for delivery of additional or different information
as the Sponsor may determine in good faith is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this RMBS Servicing
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
Section
4.11 Indemnification.
The
RMBS
Servicer shall indemnify and hold harmless the Sponsor, the Issuing Entity,
the
RMBS Master Servicer, the Securities Administrator, the Indenture Trustee and
their respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the RMBS Servicer’s obligations under this Section 4.09
hereof, (ii) any material misstatement any material misstatement or material
omission in any information, data or materials required to be contained in
the
reports provided under this Sections 4.06, 4.07, 4.08 and 4.09, or (iii) or
the
RMBS Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
ARTICLE
V
THE
RMBS
SERVICER
Section
5.01 Liability
of the RMBS Servicer.
The
RMBS
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the RMBS Servicer
herein.
Section
5.02 Merger
or Consolidation of or Assumption of the Obligations of the RMBS
Servicer.
Any
corporation into which the RMBS Servicer may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the RMBS Servicer shall be a party, or
any
corporation succeeding to the business of the RMBS Servicer, shall be the
successor of the RMBS 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 to the RMBS Servicer shall be qualified to
sell mortgage loans to and service mortgage loans for Xxxxxx Xxx or Xxxxxxx
Mac.
The
RMBS
Servicer may assign its rights and delegate its duties and obligations under
this RMBS Servicing Agreement; provided,
that
the Person accepting such assignment or delegation (which may include Bank
of
America, N.A. or any affiliate of Bank of America, N.A.) shall be a Person
which
is qualified to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac,
and (except in the case of Bank of America, N.A. or an affiliate of Bank of
America, N.A.) is reasonably satisfactory to the RMBS Master Servicer, is
willing to service the Mortgage Loans and executes and delivers to the RMBS
Master Servicer, the Issuing Entity and the Indenture Trustee an agreement,
in
form and substance reasonably satisfactory to the RMBS Master Servicer, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
RMBS Servicer under this RMBS Servicing Agreement; provided,
further,
that
each Rating Agency’s rating of the applicable Notes in effect immediately prior
to such assignment and delegation will not be qualified, reduced, or withdrawn
as a result of such assignment and delegation (as evidenced by a letter to
such
effect from each Rating Agency) or considered to be below investment
grade.
Section
5.03 Limitation
on Liability of the RMBS Servicer and Others.
The
RMBS
Servicer shall immediately notify the RMBS Master Servicer if a claim is made
by
a third party with respect to this Agreement or the Mortgage Loans, assume
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered in respect of such claim. The RMBS Servicer agrees
that it will not enter into the settlement of any such claim
if such
settlement would materially and adversely affect the interests of the
Noteholders. The RMBS Servicer shall be entitled to reimbursement of any such
costs and expenses from funds in the Protected Account, unless such claim
relates to a matter for which the RMBS Servicer is required to indemnify the
Issuing Entity, the Indenture Trustee, the Owner Trustee or the RMBS Master
Servicer pursuant to Section 5.06. Neither the RMBS Servicer nor any of the
directors or officers or employees or agents of the RMBS Servicer shall be
under
any liability to the RMBS Master Servicer, the Owner Trustee, the Issuing Entity
and the Indenture Trustee for any action taken or for refraining from the taking
of any action in good faith pursuant to this RMBS Servicing Agreement,
provided,
however,
that
this provision shall not protect the RMBS Servicer or any such Person against
any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder. The RMBS Servicer and any director or officer or employee or agent
of
the RMBS 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 RMBS Servicer’s right to indemnity or reimbursement pursuant to this Section
5.03 shall survive any resignation or termination of the RMBS Servicer pursuant
to Sections 5.04 or 6.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination).
Section
5.04 RMBS
Servicer Not to Resign.
Subject
to the provisions of Section 5.02, the RMBS Servicer shall not resign from
the
obligations and duties hereby imposed on it except (i) upon determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law (any such determination permitting the resignation of
the
RMBS Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the RMBS Master Servicer) or (ii) upon satisfaction of the
following conditions: the RMBS Servicer has proposed a successor RMBS Servicer
to the RMBS Master Servicer in writing and such proposed successor RMBS Servicer
is reasonably acceptable to the RMBS Master Servicer; provided,
however,
that no
such resignation by the RMBS Servicer shall become effective until such
successor servicer shall have assumed the RMBS Servicer’s responsibilities and
obligations hereunder or another successor RMBS Servicer has been appointed
in
accordance with Section 6.02 and has accepted such appointment. Any such
resignation shall not relieve the RMBS Servicer of responsibility for any of
the
obligations specified in Sections 6.01 and 6.02 as obligations that survive
the
resignation or termination of the RMBS Servicer. The RMBS Servicer shall have
no
claim (whether by subrogation or otherwise) or other action against any
Noteholder for any amounts paid by the RMBS Servicer pursuant to any provision
of this RMBS Servicing Agreement.
Notwithstanding
anything to the contrary herein, the RMBS Servicer may pledge or assign as
collateral all its rights, title and interest under this RMBS Servicing
Agreement to a lender (the “Servicing Rights Pledgee”), provided,
that:
(1) upon
a
Servicing Default and receipt of a notice of termination by the RMBS Servicer,
the Servicing Rights Pledgee may direct the RMBS Servicer or its designee to
appoint a successor RMBS Servicer pursuant to the provisions, and subject to
the
conditions, set forth in Section 6.02 regarding the appointment of a successor
RMBS Servicer;
(2) the
Servicing Rights Pledgee’s rights are subject to this RMBS Servicing Agreement;
and
(3) the
RMBS
Servicer shall remain subject to termination as RMBS Servicer under this RMBS
Servicing Agreement pursuant to the terms hereof.
Section
5.05 Delegation
of Duties.
In
the
ordinary course of business, the RMBS Servicer at any time may delegate any
of
its duties hereunder to any Person, including any of its Affiliates, who agrees
to conduct such duties in accordance with standards comparable to those with
which the RMBS Servicer complies pursuant to Section 3.01. Such delegation
shall
not relieve the RMBS Servicer of its liabilities and responsibilities with
respect to such duties and shall not constitute a resignation within the meaning
of Section 5.04.
Section
5.06 Indemnification.
(a) The
RMBS
Servicer agrees to indemnify each of the RMBS Master Servicer, the Issuing
Entity, the Owner Trustee and the Indenture Trustee for and to hold each of
the
RMBS Master Servicer, the Issuing Entity, the Owner Trustee and the Indenture
Trustee harmless against, any claim, tax, penalty, loss, liability or expense
of
any kind whatsoever, incurred without negligence or willful misconduct on its
part, arising
out of, or in connection with, the failure by the RMBS Servicer to perform
its
duties in compliance with this RMBS Servicing Agreement or incurred by reason
of
the RMBS Servicer’s willful misfeasance, bad faith, gross negligence or reckless
disregard of the performance of its duties hereunder.
In
addition to the indemnification set forth in the previous sentence, the RMBS
Servicer shall indemnify and hold each of the RMBS Master Servicer, the Issuing
Entity, the Owner Trustee and the Indenture Trustee harmless from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and expenses resulting
from or related to any act or omission to act of any prior servicer, owner
or
originator of a Mortgage Loan or Mortgaged Property (or any other Person) prior
to the transfer of servicing to the RMBS Master Servicer in accordance with
Section 6.02 hereunder, provided that:
(i) with
respect to any such claim, the RMBS Master Servicer, the Issuing Entity, the
Owner Trustee or the Indenture Trustee, as applicable, shall have given the
RMBS
Servicer written notice thereof promptly after the RMBS Master Servicer, the
Issuing Entity, the Owner Trustee or the Indenture Trustee, as applicable,
shall
have actual knowledge thereof, it being understood that failure to give such
notice shall not relieve the RMBS Servicer of its indemnification obligations
hereunder;
(ii) while
maintaining control over its own defense, the RMBS Master Servicer, the Issuing
Entity, the Owner Trustee or the Indenture Trustee, as applicable, shall
cooperate and consult fully with the RMBS Servicer in preparing such defense;
and
(iii) notwithstanding
anything in this RMBS Servicing Agreement to the contrary, the RMBS Servicer
shall not be liable for settlement of any claim by the RMBS Master Servicer,
the
Issuing Entity, the Owner Trustee or the Indenture Trustee, as applicable,
entered into without the prior consent of the RMBS Servicer, which consent
shall
not be unreasonably withheld.
(b) The
RMBS
Master Servicer agrees to indemnify the Owner Trustee and the Indenture
Trustee for,
and
to hold the Owner Trustee and the Indenture Trustee, harmless against, any
claim, tax, penalty, loss, liability or expense of any kind whatsoever, in
connection with their respective duties under any of the Basic Documents, except
to the extent that such claim, tax, penalty, loss liability or expense is (i)
caused by the Owner Trustee’s or the Indenture Trustee’s, as the case may be,
own willful misconduct, gross negligence or bad faith or (ii) solely with
respect to the Owner Trustee, incurred as a result of the inaccuracy of any
representation or warranty contained in Section 6.03 of the Trust Agreement
expressly made by the Owner Trustee.
(c) No
termination of this RMBS Servicing Agreement or the resignation or removal
of
the RMBS Servicer shall affect the obligations created by this Section 5.06
of
the RMBS Servicer to indemnify the RMBS Master Servicer, the Issuing Entity,
the
Owner Trustee and the Indenture Trustee under the conditions and to the extent
set forth herein. This section shall survive the termination of this RMBS
Servicing Agreement and the resignation or removal of the RMBS Servicer and
the
Indenture Trustee. Any amounts to be paid by the RMBS Servicer pursuant to
this
Subsection may not be paid from the Trust Estate.
Section
5.07 Duties
of the RMBS Servicer With Respect to the Indenture.
(a) The
RMBS
Servicer shall take all appropriate action that is the duty of the Issuing
Entity to take with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(i) causing
the preparation of the Notes (for execution by the Owner Trustee) upon their
initial issuance and causing the preparation of an Issuing Entity Request (for
execution by the Owner Trustee) for delivery to the Securities Administrator
regarding the authentication of the Notes (Section 2.02);
(ii) causing
the preparation of an Issuing Entity Request and Officer’s Certificate (and
executing the same on behalf of the Issuing Entity) and the obtaining of an
Opinion of Counsel and Independent Certificates, if necessary, for the release
of the Collateral (Section 8.05);
(iii) causing
the preparation of Issuing Entity Requests (and executing the same on behalf
of
the Issuing Entity) and the obtaining of Opinions of Counsel with respect to
the
execution of supplemental indentures;
(iv) causing
the preparation and obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral
(Sections 8.05 and 10.01);
(v) the
delivery of notice to the Indenture Trustee and the Rating Agencies of each
Event of Default under the Indenture and under the Trust Agreement (Sections
3.24 and 5.01);
(vi) the
annual delivery of Opinions of Counsel, in accordance with Section 3.07 of
the
Indenture, as to the Trust Estate, and the annual delivery and execution of
the
Officers’ Certificate (Section 3.10);
(vii) causing
the preparation and execution of an Officer’s Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate relating thereto with
respect to any request by the Issuing Entity to the Indenture Trustee to take
any action under the Indenture (Sections 4.10 and 10.01);
(viii) obtaining
and preserving the Issuing Entity’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of the Indenture, the Notes, the Mortgage Loans
and
each other instrument and agreement included in the Trust Estate (Section
3.04).
(b) In
addition to the duties of the RMBS Servicer set forth above, the RMBS Servicer
shall prepare for execution by the Issuing Entity or shall cause the preparation
by other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuing
Entity to prepare, file or deliver pursuant to the Basic Documents, and at
the
request of the Owner Trustee or the Indenture Trustee (who is in no event
obligated to make such requests or direction) shall take all appropriate action
that it is the duty of the Issuing Entity to take pursuant to the Basic
Documents. In accordance with the directions of the Owner Trustee or Indenture
Trustee (who is in no event obligated to make such requests or direction),
the
RMBS Servicer shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Basic
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee or the Indenture Trustee (who is in
no
event obligated to make such requests or direction) and are reasonably within
the capability of the RMBS Servicer.
Section
5.08 Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Indenture Trustee is required to obtain, verify and record
certain information relating to individuals and entities with maintain a
business relationship with the Indenture Trustee. Accordingly, each of the
parties agrees to provide to the Indenture Trustee upon its request from time
to
time such party’s complete name, address, tax identification number and such
other identifying information together with copies of such party’s constituting
documentation, securities disclosure document and such other identifying
documentation as may be available for such party.
ARTICLE
VI
DEFAULT
Section
6.01 Servicing
Default.
If
any
one of the following events (each, a AServicing
Default”) shall occur and be continuing:
(i) Any
failure by the RMBS Servicer to deposit in the Protected Account or Payment
Account any deposit required to be made under the terms of this RMBS Servicing
Agreement, including any Monthly Advances and Compensating Interest (other
than
Servicing Advances), which continues unremedied for a period of one (1) Business
Day after the date upon which written notice of such failure shall have been
given to the RMBS Servicer by the RMBS Master Servicer; or
(ii) Failure
on the part of the RMBS Servicer duly to observe or perform in any material
respect any representation or warranty of the RMBS Servicer or any other
covenants or agreements of the RMBS Servicer (including the making of Servicing
Advances) set forth in this RMBS Servicing Agreement, which failure, in each
case, materially and adversely affects the interests of the Noteholders and
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, and stating
that such notice is a ANotice
of
Default” hereunder, shall have been given to the RMBS Servicer by the RMBS
Master Servicer; or
(iii) The
entry
against the RMBS Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding up or liquidation of
its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(iv) The
RMBS
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the RMBS Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court, agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the RMBS Servicer and such decree or order shall have
remained in force undischarged, unbonded or unstayed for a period of 60 days;
or
the RMBS Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
then,
and
in every such case, so long as a Servicing Default shall not have been remedied
by the RMBS Servicer, the RMBS Master Servicer may, by notice then given to
the
RMBS Servicer, terminate all of the rights and obligations of the RMBS Servicer
as servicer under this RMBS Servicing Agreement other than its right to receive
servicing compensation and expenses for servicing the Mortgage Loans hereunder
during any period prior to the date of such termination and the RMBS Master
Servicer may exercise any and all other remedies available at law or equity.
Any
such notice to the RMBS Servicer shall also be given to the Company and the
Issuing Entity. On or after the receipt by the RMBS Servicer of such written
notice, all authority and power of the RMBS Servicer under this RMBS Servicing
Agreement, whether with respect to the Notes or the Mortgage Loans or otherwise,
shall pass to and be vested in the RMBS Master Servicer, pursuant to and under
this Section 6.01; and, without limitation, the RMBS Master Servicer is hereby
authorized and empowered to execute and deliver, on behalf of the RMBS Servicer,
as attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement of each Mortgage Loan and related documents, or
otherwise. Notwithstanding the foregoing, the parties hereto and the
Securityholders by their acceptance of any Security, acknowledge and agree
that
there will be a period of transition before the actual servicing functions
can
be fully transferred to the RMBS Master Servicer, as successor RMBS Servicer,
or
to a successor RMBS Servicer appointed by the RMBS Master Servicer pursuant
to
the provisions hereof, provided, that the RMBS Master Servicer shall use its
reasonable best efforts to succeed to the actual servicing functions or find
a
successor RMBS Servicer as soon as possible but no later than 100 days after
such termination; and provided further that the RMBS Master Servicer shall
continue to have the right to appoint a successor RMBS Servicer after such
100-day period in accordance with Section 6.02. The RMBS Servicer agrees to
cooperate with the RMBS Master Servicer in effecting the termination of the
responsibilities and rights of the RMBS Servicer hereunder, including, without
limitation, the transfer to the RMBS Master Servicer or the successor RMBS
Servicer for administration by it of (i) the property and amounts which are
then
or should be part of the Trust Estate or which thereafter become part of the
Trust Estate; (ii) originals or copies of all documents of the RMBS Servicer
reasonably requested by the RMBS Master Servicer to enable it to assume the
RMBS
Servicer’s duties thereunder and under the Subservicing Agreements; (iii) unless
terminated in accordance with this RMBS Servicing Agreement, the rights and
obligations of the RMBS Servicer under the Subservicing Agreements with respect
to the Mortgage Loans; (iv) all cash amounts which shall at the time be
deposited by the RMBS Servicer or should have been deposited to the Protected
Account, the related Servicing Accounts or the Payment Account or thereafter
be
received with respect to the Mortgage Loans; and (v) all costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
RMBS
Master Servicer or any successor RMBS Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the RMBS Master
Servicer or successor RMBS Servicer to service the Mortgage Loans properly
and
effectively. All
reasonable costs and expenses (including, but not limited to, attorneys’ fees
and disbursements) incurred by the RMBS Master Servicer or a successor RMBS
Servicer in connection with its succession as RMBS Servicer, or the Indenture
Trustee in accordance with such succession (as provided below), including
amending this RMBS Servicing Agreement to reflect such succession as RMBS
Servicer pursuant to this Section 6.01 shall be paid by the predecessor RMBS
Servicer (or if the predecessor RMBS Servicer is the RMBS Master Servicer,
the
terminated RMBS Servicer) upon presentation of reasonable documentation of
such
costs and expenses.
The
Trustee or its affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Eligible Investments, (ii) using
affiliates to effect transactions in certain Eligible Investments and (iii)
effecting transactions in certain Eligible Investments. Such compensation is
not
payable or reimbursable under this Agreement.
Notwithstanding
any termination of the activities of the RMBS Servicer hereunder, the RMBS
Servicer shall be entitled to receive, out of any late collection of a payment
on a Mortgage Loan which was due prior to the notice terminating the RMBS
Servicer’s rights and obligations hereunder and received after such notice, that
portion to which the RMBS Servicer would have been entitled pursuant to Sections
3.07 and 3.15 as well as its Servicing Fee in respect thereof, and any other
amounts payable to the RMBS Servicer hereunder the entitlement to which arose
prior to the termination of its activities hereunder.
The
RMBS
Servicer shall immediately notify the RMBS Master Servicer in writing of the
occurrence of any Servicing Default or any Servicing Trigger Event.
In
addition, upon the occurrence of any Servicing Trigger Event, the RMBS Master
Servicer shall terminate the rights and responsibilities of the RMBS Servicer
hereunder and shall appoint a successor RMBS Servicer in accordance with the
provisions of this Section 6.02; provided, however, that the foregoing provision
shall not apply in the event that the RMBS Servicer is rated “SQ2-” or better by
Moody’s on any date. In the event of the appointment of the RMBS Master Servicer
or other successor as successor RMBS Servicer in accordance with Section 6.02
hereof, the Servicing Trigger Event shall not apply.
Section
6.02 RMBS
Master Servicer to Act; Appointment of Successor.
(a) Within
100 days of the time the RMBS Servicer sends a notice pursuant to clause (i)
of
Section 5.04, the RMBS Master Servicer, or other successor appointed in
accordance with this Section 6.02, shall be the successor in all respects to
the
RMBS Servicer in its capacity as RMBS Servicer under this RMBS Servicing
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the RMBS Servicer by the terms and provisions hereof, including but
not limited to the provisions of Article V. Nothing in this RMBS Servicing
Agreement shall be construed to permit or require the RMBS Master Servicer
or
any other successor RMBS Servicer to (i) be responsible or accountable for
any
act or omission of the predecessor RMBS Servicer, (ii) require or obligate
the
RMBS Master Servicer, in its capacity as successor RMBS Servicer, to purchase,
repurchase or substitute any Mortgage Loan, (iii) fund any losses on any
Eligible Investment directed by any other RMBS Servicer, or (iv) be responsible
for the representations and warranties of the RMBS Servicer, except as provided
herein; provided, however, that the RMBS Master Servicer, as successor RMBS
Servicer, shall be required to make Monthly Advances to the extent that the
RMBS
Servicer failed to make such Monthly Advances, to the extent such Monthly
Advance is not determined by the RMBS Master Servicer to be a Nonrecoverable
Advance. As compensation therefor, the RMBS Master Servicer shall be entitled
to
such compensation as the RMBS Servicer would have been entitled to hereunder
if
no such notice of termination had been given. Notwithstanding the above, (i)
if
the RMBS Master Servicer is unwilling to act as successor RMBS Servicer, or
(ii)
if the RMBS Master Servicer is legally unable so to act, the RMBS Master
Servicer may (in the situation described in clause (i)) or shall (in the
situation described in clause (ii)) appoint or petition a court of competent
jurisdiction to appoint any established housing and home finance institution,
bank or other mortgage loan servicer having a net worth of not less than
$10,000,000 as the successor to the RMBS Servicer hereunder in the assumption
of
all or any part of the responsibilities, duties or liabilities of the RMBS
Servicer hereunder. Pending appointment of a successor to the RMBS Servicer
hereunder, unless the RMBS Master Servicer is prohibited by law from so acting
or is unwilling to act as such, the RMBS Master Servicer shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation which the
RMBS
Servicer would otherwise have received pursuant to Section 3.15 (or such lesser
compensation as the RMBS Master Servicer and such successor shall agree). The
appointment of a successor RMBS Servicer shall not affect any liability of
the
predecessor RMBS Servicer which may have arisen under this RMBS Servicing
Agreement prior to its termination as RMBS Servicer (including, without
limitation, the obligation to pay any deductible under an insurance policy
pursuant to Section 3.11 or to indemnify the RMBS Master Servicer pursuant
to
Section 5.06), nor shall any successor RMBS Servicer be liable for any acts
or
omissions of the predecessor RMBS Servicer or for any breach by such RMBS
Servicer of any of its representations or warranties contained herein or in
any
related document or agreement. The RMBS Master Servicer and such successor
shall
take such action, consistent with this RMBS Servicing Agreement, as shall be
necessary to effectuate any such succession.
In
connection with the termination or resignation of the RMBS Servicer hereunder,
either (i) the successor RMBS Servicer, including the RMBS Master Servicer
if
the RMBS Master Servicer is acting as successor RMBS 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, in which case the predecessor RMBS Servicer shall cooperate with the
successor RMBS Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor RMBS Servicer as necessary under MERS’
rules and regulations, or (ii) the predecessor RMBS Servicer shall cooperate
with the successor RMBS Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Indenture Trustee 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 MERS7
System
to the successor RMBS Servicer. The terminated RMBS Servicer shall file or
cause
to be filed any such assignment in the appropriate recording office. The
terminated RMBS Servicer shall bear any and all fees of MERS, costs of preparing
any assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this Section 6.02. To the extent these
fees
and costs are not paid by the terminated RMBS Servicer and are incurred by
any
successor RMBS Servicer, such fees and costs will be reimbursable to the
successor RMBS Servicer by the Trust. The successor RMBS Servicer shall cause
such assignment to be delivered to the Indenture Trustee promptly upon receipt
of the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
(b) Any
successor, including the RMBS Master Servicer, to the RMBS Servicer as servicer
shall during the term of its service as servicer (i) continue to service and
administer the Mortgage Loans for the benefit of the Securityholders, (ii)
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as RMBS Servicer hereunder
and a
fidelity bond in respect of its officers, employees and agents to the same
extent as the RMBS Servicer is so required pursuant to Section
3.11(g).
(c) Any
successor RMBS Servicer, including the RMBS Master Servicer, shall not be deemed
to be in default or to have breached its duties hereunder if the predecessor
RMBS Servicer shall fail to deliver any required deposit to the Protected
Account or a Servicing Account or otherwise cooperate with any required
servicing transfer or succession hereunder.
(d) Notwithstanding
anything else herein to the contrary, in no event shall the RMBS Master Servicer
be liable for any servicing fee or any differential in the amount of the
servicing fee paid hereunder and the amount necessary to induce any successor
RMBS Servicer to act as a successor RMBS Servicer under this RMBS Servicing
Agreement and the transactions set forth or provided for herein.
(e) Notwithstanding
any provision in this RMBS Servicing Agreement to the contrary, for a period
of
10 days following the date on which the RMBS Servicer shall have received a
notice of termination pursuant to Section 6.01 of this RMBS Servicing Agreement,
the RMBS Servicer or its designee may appoint a successor RMBS Servicer that
satisfies the eligibility criteria of a successor RMBS Servicer set forth in
this Section 6.02, which appointment shall be subject to the consent of the
Depositor, the Sponsor, the RMBS Master Servicer, and the Indenture Trustee,
which consent shall not be unreasonably withheld or delayed; provided that
such
successor RMBS Servicer agrees to fully effect the servicing transfer within
100
days following the termination of the RMBS Servicer and to make all Monthly
Advances that would otherwise be made by the RMBS Master Servicer under this
Section 6.02 as of the date of such appointment, and to reimburse the RMBS
Master Servicer for any unreimbursed Monthly Advances it has made and any
reimbursable expenses that it has incurred in connection with this Section
6.02.
Any proceeds received in connection with the appointment of such successor
RMBS
Servicer shall be the property of the RMBS Servicer or its designee. This 10-day
period shall terminate immediately (i) at the close of business on the second
Business Day of such 10-day period if (A) the RMBS Servicer was terminated
because of a Servicing Default described in Section 6.01(i) for failing to
make
a required Monthly Advance, and (B) the RMBS Servicer shall have failed to
make
(or cause to be made) such Monthly Advance, or shall fail to reimburse (or
cause
to be reimbursed) the RMBS Master Servicer for a Monthly Advance made by the
RMBS Master Servicer, by the close of business on such second Business Day,
or
(ii) at the close of business on the second Business Day following the date
(if
any) during such 10-day period on which a Monthly Advance is due to be made,
if
the RMBS Servicer shall have failed to make (or caused to be made) such Monthly
Advance, or the RMBS Servicer shall have failed to reimburse (or cause to be
reimbursed) the RMBS Master Servicer for such Monthly Advance, by the close
of
business on such second Business Day. Notwithstanding anything to the contrary
above, the RMBS Servicer shall perform all of the obligations of the RMBS
Servicer in this RMBS Servicing Agreement until a successor RMBS Servicer is
appointed and such appointment is effective.
Section
6.03 Reserved.
Section
6.04 Waiver
of Defaults.
The
RMBS
Master Servicer may waive any default by the RMBS Servicer in the performance
of
its obligations hereunder and the consequences thereof, except a default in
the
making of or the causing to be made any required distribution. Upon any such
waiver of a past default, such default shall be deemed to cease to exist, and
any Servicing Default arising therefrom shall be deemed to have been timely
remedied for every purpose of this RMBS Servicing 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.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
RMBS
Servicing Agreement may be amended from time to time by the parties
hereto.
Section
7.02 GOVERNING
LAW.
THIS
RMBS
SERVICING AGREEMENT SHALL BE 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 NEW YORK GENERAL OBLIGATION LAW, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if when delivered to:
(a) in
the
case of the RMBS Master Servicer and the Securities Administrator:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx
, Xxxxxxxx 00000
(or,
in
the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
21045) (Attention: Corporate Trust Services - AHMIT 2006-2), facsimile no.:
(000) 000-0000, or such other address as may hereafter be furnished to the
other
parties hereto in writing;)
(b) in
the
case of the RMBS Servicer:
American
Home Mortgage Servicing, Inc.
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx,
Xxxxx 00000-0000
Attention:
Xxxxx Xxxxxxxx
(c) in
the
case of Rating Agencies:
Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx - 41st
Floor
Attention:
Asset Backed Surveillance Group
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
(d) in
the
case of the Owner Trustee, the Corporate Trust Office: Wilmington Trust
Company
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
(e) in
the
case of the Issuing Entity, to American Home Mortgage Investment Trust 2006-2:
c/o
American Home Mortgage Securities LLC
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
General Counsel
(f) in
the
case of the Indenture Trustee: its Corporate Trust Office
(g) in
the
case of the Sponsor:
American
Home Mortgage Acceptance, Inc.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx XxXxxxxx
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid,
at
the address of such Noteholder as shown in the Note Register.
Section
7.04 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this RMBS
Servicing Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this RMBS Servicing
Agreement and shall in no way affect the validity or enforceability of the
other
provisions of this RMBS Servicing Agreement or of the Notes or the rights of
the
Noteholders thereof.
Section
7.05 Third-Party
Beneficiaries.
This
RMBS
Servicing Agreement will inure to the benefit of and be binding upon the parties
hereto, the Noteholders, the Owner Trustee, the Securities Administrator and
their respective successors and permitted assigns. Except as otherwise provided
in this RMBS Servicing Agreement, no other Person will have any right or
obligation hereunder.
Section
7.06 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
7.07 Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
7.08 Termination.
The
respective obligations and responsibilities of the RMBS Servicer and the RMBS
Master Servicer created hereby shall terminate upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof.
Section
7.09 No
Petition.
The
RMBS
Servicer, by entering into this RMBS Servicing Agreement, hereby covenants
and
agrees that it will not at any time institute against the Issuing Entity, or
join in any institution against the Issuing Entity, any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in connection
with any obligations of the Issuing Entity. This section shall survive the
satisfaction and discharge of the Indenture by one year.
Section
7.10 No
Recourse.
The
RMBS
Servicer acknowledges that no recourse may be had against the Issuing Entity,
except as may be expressly set forth in this RMBS Servicing
Agreement.
Section
7.11 Consent
to Jurisdiction.
The
parties to this RMBS Servicing Agreement each hereby irrevocably submits to
the
nonexclusive jurisdiction of any New York State or federal court sitting in
the
Borough of Manhattan in The City of New York in any action or proceeding arising
out of or relating to this RMBS Servicing Agreement or the transactions
contemplated hereby, and all such parties hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined
in
such New York State or federal court and hereby irrevocably waive, to the
fullest extent that they may legally do so, the defense of an inconvenient
forum
to the maintenance of such action or proceeding. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR
RELATING TO THIS RMBS SERVICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
7.12 Certain
Terms Concerning Indenture Trustee.
The
Indenture Trustee is entering into this Agreement not in its individual capacity
but solely in its capacity as trustee under the Indenture and all
indemnifications and protections from liability provided to the Indenture
Trustee under the Indenture shall, with out limitation, extend to the Indenture
Trustee hereunder. The Indenture Trustee shall have no obligations or duties
under this Agreement other than those duties expressly set forth herein as
duties on its part to be performed hereunder, and no implied duties shall be
read into this Agreement against the Indenture Trustee. The Indenture Trustee
is
not responsible for the terms of this Agreement or their sufficiency for any
purpose.
IN
WITNESS WHEREOF, the RMBS Master Servicer, the Issuing Entity, the Sponsor,
the
Indenture Trustee and the RMBS Servicer have caused this RMBS Servicing
Agreement to be duly executed by their respective officers or representatives
all as of the day and year first above written.
XXXXX FARGO BANK, N.A.
as
RMBS Master Servicer
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
AMERICAN HOME MORTGAGE SERVICING, INC.
as
RMBS SERVICER
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Executive Vice President, General Counsel, &
Secretary
|
AMERICAN
HOME MORTGAGE INVESTMENT TRUST 2006-2, as Issuing Entity
|
||
|
WILMINGTON
TRUST COMPANY, not in its
individual capacity, but solely as Owner Trustee |
||
|
By:
/s/ Xxx Xxxxxx
|
||
|
Name:
Xxx Xxxxxx
|
||
|
Title:
Vice President
|
||
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS, not in its individual capacity but solely
as
Indenture Trustee
|
||
|
By:
/s/ Xxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxxxx
|
||
|
Title:
Authorized Signer
|
||
|
By:
/s/ Xxxxxxx Xxxxx
|
||
|
Name:
Xxxxxxx Xxxxx
|
||
|
Title:
Vice President
|
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
SPONSOR
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Executive Vice President, General Counsel, &
Secretary
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(Filed
Manually)
EXHIBIT
B
FORM
OF
REQUEST FOR RELEASE
DATE:
TO:
RE:REQUEST
FOR RELEASE OF DOCUMENTS
In
connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
RMBS
Servicing Agreement (ARMBS
Servicing Agreement”) Dated:
Series
#:
Account
#:
Pool
#:
Loan
#:
Borrower
Name(s):
Reason
for Document Request: (circle one) Mortgage Loan Prepaid in
Full
Other
Mortgage
Loan Repurchased
Please
deliver the Mortgage File to
AWe
hereby
certify that all amounts received or to be received in connection with such
payments which are required to be deposited have been deposited in the Protected
Account as provided in the RMBS Servicing Agreement.”
[Name
of
RMBS Servicer]
Authorized
Signature
******************************************************************************************************************************************
TO
INDENTURE TRUSTEE: Please acknowledge this request (if we so request), and
check
off documents being enclosed with a copy of this form. You should retain this
form for your files in accordance with the terms of the RMBS Servicing
Agreement.
Enclosed
Documents: [_]
Promissory Note
[_]
Mortgage or Deed of Trust
[_]
Assignment(s) of Mortgage or Deed of Trust
[_]
Title Insurance Policy
_______________________ [_]
Other:
Name
_______________________
Title
_______________________
Date
EXHIBIT
C
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE RMBS SERVICER
Mortgage-Backed
Notes, Series 2006-2
I,
[identify the certifying individual], a [title] of ______, (the “RMBS
Servicer”), hereby certify to the RMBS Master Servicer, American Home Mortgage
Securities LLC and American Home Mortgage Acceptance, Inc. and their respective
officers, directors and affiliates, and with the knowledge and intent that
they
will rely upon this certification, that:
|
(1)
|
I
have reviewed the servicer compliance statement of the RMBS Servicer
provided in accordance with Section 4.06 of the RMBS Servicing Agreement
and Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the RMBS Servicer compliance with the servicing criteria
set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”),
provided in accordance with Section 4.08 of the RMBS Servicing Agreement,
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 RMBS Servicer during
200[ ]
that were delivered by the RMBS Servicer to the RMBS Master Servicer
pursuant to the RMBS Servicing Agreement (collectively, the “RMBS Servicer
Servicing Information”);
|
|
(2)
|
Based
on my knowledge, the RMBS 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 RMBS Servicer Servicing
Information;
|
|
(3)
|
Based
on my knowledge, all of the RMBS Servicer Servicing Information required
to be provided by the RMBS Servicer under the RMBS Servicing Agreement
has
been provided to the RMBS Master
Servicer;
|
|
(4)
|
I
am responsible for reviewing the activities performed by the RMBS
Servicer
as servicer under the RMBS Servicing 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 RMBS Servicer has fulfilled
its
obligations under the RMBS Servicing Agreement in all material respects;
and
|
|
(5)
|
The
Compliance Statement required to be delivered by the RMBS Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the RMBS Servicer and by any Servicing
Function Participant engaged by the RMBS Servicer pursuant to the
RMBS
Servicing Agreement, have been provided to the RMBS Master Servicer.
Any
material instances of noncompliance described in such reports have
been
disclosed to the RMBS Master Servicer. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
|
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the RMBS Servicing Agreement (the “RMBS Servicing Agreement”), dated as of
June 30, 2006, among American Home Mortgage Servicing, Inc., Xxxxx Fargo Bank
National Association, American Home Mortgage Investment Trust 2006-2, American
Home Mortgage Acceptance, Inc., and Deutsche Bank Trust Company
Americas.
|
Date:
|
|
|
[Signature]
|
|
|
[Title]
|
EXHIBIT
D
LOAN
LEVEL FORMAT FOR TAPE INPUT,
RMBS
SERVICER PERIOD REPORTING
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 ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
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
|
EXHIBIT
E
REPORTING
DATA FOR DEFAULTED LOANS
Data
must
be submitted to Xxxxx Fargo Bank in an Excel
spreadsheet format with fixed field names and data type. The Excel
spreadsheet should be used as a template consistently every month when
submitting data.
|
Table:
Delinquency
|
|
Name
|
Type
|
Size
|
||
|
Servicer
Loan #
|
Number
(Double)
|
8
|
||
|
Investor
Loan #
|
Number
(Double)
|
8
|
||
|
Borrower
Name
|
Text
|
20
|
||
|
Address
|
Text
|
30
|
||
|
State
|
Text
|
2
|
||
|
Due
Date
|
Date/Time
|
8
|
||
|
Action
Code
|
Text
|
2
|
||
|
FC
Received
|
Date/Time
|
8
|
||
|
File
Referred to Atty
|
Date/Time
|
8
|
||
|
NOD
|
Date/Time
|
8
|
||
|
Complaint
Filed
|
Date/Time
|
8
|
||
|
Sale
Published
|
Date/Time
|
8
|
||
|
Target
Sale Date
|
Date/Time
|
8
|
||
|
Actual
Sale Date
|
Date/Time
|
8
|
||
|
Loss
Mit Approval Date
|
Date/Time
|
8
|
||
|
Loss
Mit Type
|
Text
|
5
|
||
|
Loss
Mit Estimated Completion Date
|
Date/Time
|
8
|
||
|
Loss
Mit Actual Completion Date
|
Date/Time
|
8
|
||
|
Loss
Mit Broken Plan Date
|
Date/Time
|
8
|
||
|
BK
Chapter
|
Text
|
6
|
||
|
BK
Filed Date
|
Date/Time
|
8
|
||
|
Post
Petition Due
|
Date/Time
|
8
|
||
|
Motion
for Relief
|
Date/Time
|
8
|
||
|
Lift
of Stay
|
Date/Time
|
8
|
||
|
RFD
|
Text
|
10
|
||
|
Occupant
Code
|
Text
|
10
|
||
|
Eviction
Start Date
|
Date/Time
|
8
|
||
|
Eviction
Completed Date
|
Date/Time
|
8
|
||
|
List
Price
|
Currency
|
8
|
||
|
List
Date
|
Date/Time
|
8
|
||
|
Accepted
Offer Price
|
Currency
|
8
|
||
|
Accepted
Offer Date
|
Date/Time
|
8
|
||
|
Estimated
REO Closing Date
|
Date/Time
|
8
|
||
|
Actual
REO Sale Date
|
Date/Time
|
8
|
Items
in bold are MANDATORY FIELDS. We must receive information in those fields every
month in order for your file to be accepted.
The
Action Code Field should show the applicable numeric code to indicate that
a
special action is being taken. The Action Codes are the
following:
12-Relief Provisions
15-Bankruptcy/Litigation
20-Referred
for Deed-in-Lieu
30-Referred
fore Foreclosure
00-Xxxxxx
00-Xxxxxxxxxx
00-XXX-Xxxx
for Sale
71-Third
Party Sale/Condemnation
72-REO-Pending
Conveyance-Pool Insurance claim filed
Xxxxx
Fargo Bank will accept alternative Action Codes to those above, provided that
the Codes are consistent with industry standards. If Action Codes other than
those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the
file.
Description
of Action Codes:
Action
Code 12
- To
report a Mortgage Loan for which the Borrower has been granted relief for curing
a delinquency. The Action Date is the date the relief is expected to end. For
military indulgence, it will be three months after the Borrower's discharge
from
military service.
Action
Code 15
- To
report the Borrower's filing for bankruptcy or instituting some other type
of
litigation that will prevent or delay liquidation of the Mortgage Loan. The
Action Date will be either the date that any repayment plan (or forbearance)
instituted by the bankruptcy court will expire or an additional date by which
the litigation should be resolved.
Action
Code 20
- To
report that the Borrower has agreed to a deed-in-lieu or an assignment of the
property. The Action Date is the date the Servicer decided to pursue a
deed-in-lieu or the assignment.
Action
Code 30
- To
report that the decision has been made to foreclose the Mortgage Loan. The
Action Date is the date the Servicer referred the case to the foreclosure
attorney.
Action
Code 60
- To
report that a Mortgage Loan has been paid in full either at, or prior to,
maturity. The Action Date is the date the pay-off funds were remitted to the
Master Servicer.
Action
Code 65
- To
report that the Servicer is repurchasing the Mortgage Loan. The Action Date
is
the date the repurchase proceeds were remitted to the Master
Servicer.
Action
Code 70
- To
report that a Mortgage Loan has been foreclosed or a deed-in-lieu of foreclosure
has been accepted, and the Servicer, on behalf of the owner of the Mortgage
Loan, has acquired the property and may dispose of it. The Action Date is the
date of the foreclosure sale or, for deeds-in-lieu, the date the deed is
recorded on behalf of the owner of the Mortgage Loan.
Action
Code 71
- To
report that a Mortgage Loan has been foreclosed and a third party acquired
the
property, or a total condemnation of the property has occurred. The Action
Date
is the date of the foreclosure sale or the date the condemnation award was
received.
Action
Code 72
- To
report that a Mortgage Loan has been foreclosed, or a deed-in-lieu has been
accepted, and the property may be conveyed to the mortgage insurer and the
pool
insurance claim has been filed. The Action Date is the date of the foreclosure
sale, or, for deeds-in-lieu, the date of the deed for conventional
mortgages.
The
Loss
Mit Type field should show the approved Loss Mitigation arrangement. The
following are acceptable:
|
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
|
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. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit
F
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
(a) 1.
The
numbers on the 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. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, bills, canceled checks, etc., to document the
expense. Entries not properly documented will not be reimbursed to the
Servicer.
13.
The
total
of lines 1 through 12.
(b)
Credits:
14-21.
Complete
as applicable. All line entries must be supported by copies of the appropriate
claims forms, EOBs, HUD-1 and/or other proceeds verification, statements,
payment checks, etc. to document the credit. If the Mortgage Loan is subject
to
a Bankruptcy Deficiency, the difference between the Unpaid Principal Balance
of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance
as
reduced by the Bankruptcy Deficiency should be input on line 20.
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
(c)
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 ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
XXXXX
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
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
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__________________________
|
________________
|
||||||
|
HOA/Condo
Fees_______________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
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
|
________________
|
(18)
|
||||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
||||
|
_________________________________________
|
_________________
|
||||||
|
_________________________________________
|
|
_________________
|
|||||
|
Total
Credits
|
$________________
|
|
(22)
|
||||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
|
(23)
|
||||
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
[NAME
OF
OWNER] [NAME OF SUBSERVICER]
Date: _________________________
By: ___________________________
Name:
Title:
