AURORA LOAN SERVICES LLC, as Servicer LEHMAN BROTHERS HOLDINGS INC., as Seller and AURORA LOAN SERVICES LLC as Master Servicer Structured Asset Securities Corporation Lehman XS Trust Mortgage Pass-Through Certificates, Series 2007-17H SERVICING...
EXECUTION
AURORA
LOAN SERVICES LLC,
as
Servicer
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
and
AURORA
LOAN SERVICES LLC
as
Master
Servicer
_____________________________
Structured
Asset Securities Corporation
Xxxxxx
XS
Trust
Mortgage
Pass-Through Certificates, Series 2007-17H
Dated
as
of September 1, 2007
_____________________________
TABLE
OF CONTENTS
Page
ARTICLE
I. DEFINITIONS
ARTICLE
II. SELLER’S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section
2.01
|
Contract
for Servicing; Possession of Servicing Files.
|
15
|
Section
2.02
|
Books
and Records.
|
16
|
ARTICLE
III. SERVICING OF THE MORTGAGE LOANS
|
||
Section
3.01
|
Servicer
to Service.
|
17
|
Section
3.02
|
Collection
of Mortgage Loan Payments.
|
19
|
Section
3.03
|
Establishment
of and Deposits to Custodial Account.
|
19
|
Section
3.04
|
Permitted
Withdrawals From Custodial Account.
|
21
|
Section
3.05
|
Establishment
of and Deposits to Escrow Account.
|
23
|
Section
3.06
|
Permitted
Withdrawals From Escrow Account.
|
23
|
Section
3.07
|
Maintenance
of PMI Policy and/or LPMI Policy; Claims.
|
24
|
Section
3.08
|
Fidelity
Bond and Errors and Omissions Insurance.
|
25
|
Section
3.09
|
Notification
of Adjustments.
|
26
|
Section
3.10
|
Completion
and Recordation of Assignments of Mortgage.
|
26
|
Section
3.11
|
Protection
of Accounts.
|
26
|
Section
3.12
|
Payment
of Taxes, Insurance and Other Charges.
|
27
|
Section
3.13
|
Maintenance
of Hazard Insurance.
|
27
|
Section
3.14
|
Maintenance
of Mortgage Impairment Insurance.
|
28
|
Section
3.15
|
Restoration
of Mortgaged Property.
|
28
|
Section
3.16
|
Title,
Management and Disposition of REO Property.
|
29
|
Section
3.17
|
Real
Estate Owned Reports.
|
32
|
Section
3.18
|
MERS.
|
32
|
Section
3.19
|
Waiver
of Prepayment Charges.
|
33
|
Section
3.20
|
Safeguarding
Customer Information.
|
33
|
ARTICLE
IV. PAYMENTS TO MASTER SERVICER
|
||
Section
4.01
|
Remittances.
|
33
|
Section
4.02
|
Statements
to Master Servicer.
|
34
|
Section
4.03
|
Monthly
Advances by Servicer.
|
36
|
ARTICLE
V. GENERAL SERVICING PROCEDURES
|
||
Section
5.01
|
Servicing
Compensation.
|
37
|
Section
5.02
|
Report
on Attestation of Compliance with Applicable Servicing
Criteria.
|
37
|
Section
5.03
|
Annual
Officer’s Certificate.
|
38
|
Section
5.04
|
Report
on Assessment of Compliance with Applicable Servicing
Criteria.
|
38
|
Section
5.05
|
Transfers
of Mortgaged Property.
|
39
|
ARTICLE
VI. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS
|
ii
Section
6.01
|
Representations,
Warranties and Agreements of the Servicer.
|
40
|
Section
6.02
|
Remedies
for Breach of Representations and Warranties of the
Servicer.
|
42
|
Section
6.03
|
Additional
Indemnification by the Servicer; Third Party Claims.
|
43
|
Section
6.04
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
44
|
Section
6.05
|
Reporting
Requirements of the Commission and Indemnification.
|
44
|
ARTICLE
VII. THE SERVICER
|
||
Section
7.01
|
Merger
or Consolidation of the Servicer.
|
45
|
Section
7.02
|
Limitation
on Liability of the Servicer and Others.
|
46
|
Section
7.03
|
Limitation
on Resignation and Assignment by the Servicer.
|
46
|
Section
7.04
|
Subservicing
Agreements and Successor Subservicer.
|
47
|
Section
7.05
|
Inspection.
|
49
|
ARTICLE
VIII. TERMINATION
|
||
Section
8.01
|
Termination
for Cause.
|
49
|
Section
8.02
|
Termination
Without Cause.
|
51
|
ARTICLE
IX. MISCELLANEOUS PROVISIONS
|
||
Section
9.01
|
Successor
to the Servicer.
|
52
|
Section
9.02
|
Costs.
|
54
|
Section
9.03
|
Notices.
|
54
|
Section
9.04
|
Severability
Clause.
|
56
|
Section
9.05
|
No
Personal Solicitation.
|
56
|
Section
9.06
|
Counterparts.
|
57
|
Section
9.07
|
Place
of Delivery and Governing Law.
|
57
|
Section
9.08
|
Further
Agreements.
|
57
|
Section
9.09
|
Intention
of the Parties.
|
57
|
Section
9.10
|
Successors
and Assigns; Assignment of Servicing Agreement.
|
57
|
Section
9.11
|
Assignment
by the Seller.
|
57
|
Section
9.12
|
Amendment.
|
58
|
Section
9.13
|
Waivers.
|
58
|
Section
9.14
|
Exhibits.
|
58
|
Section
9.15
|
Intended
Third Party Beneficiaries.
|
58
|
Section
9.16
|
General
Interpretive Principles.
|
59
|
Section
9.17
|
Reproduction
of Documents.
|
59
|
Section
9.18
|
Protection
of Confidential Information.
|
60
|
iii
EXHIBITS
EXHIBIT
A
|
Mortgage
Loan Schedule
|
EXHIBIT
B
|
Custodial
Account Certification Notice
|
EXHIBIT
C
|
Escrow
Account Certification Notice
|
EXHIBIT
D-1
|
Form
of Monthly Remittance Advice
|
EXHIBIT
D-2
|
Standard
Layout for Monthly Defaulted Loan Report
|
EXHIBIT
E
|
LXS
2007-17H Trust Agreement
|
EXHIBIT
F
|
Form
of Certification to be Provided to the Depositor, the Trustee and
the
Master Servicer by the Servicer
|
EXHIBIT
G
|
Xxxxxx
Xxx Guide No. 95-19
|
EXHIBIT
H
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
EXHIBIT
I
|
Transaction
Parties
|
EXHIBIT
J
|
Form
of Annual Officer’s Certificate
|
EXHIBIT
K
|
Schedule
of Adjustable Rate Mortgage Loans Subject to Adjustment
|
EXHIBIT
L
|
Assignment
and Assumption Agreement
|
iv
This
SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st day of
September, 2007, by and among XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (“LBH” or the “Seller”), AURORA LOAN SERVICES LLC, a Delaware
limited liability company in its capacity as primary servicer (the “Servicer”),
AURORA LOAN SERVICES LLC in its capacity as master servicer (the “Master
Servicer”), and acknowledged by U.S. BANK, N.A., as Trustee (the “Trustee”)
under the Trust Agreement (as defined herein) recites and provides as
follows:
RECITALS
WHEREAS,
the Servicer and Xxxxxx Brothers Bank, FSB, a federal savings bank (the “Bank”)
are parties to a Flow Servicing Agreement, dated as of August 31, 1999, pursuant
to which the Servicer services certain residential, fixed and adjustable
rate
first lien mortgage loans identified on Exhibit A hereto (the “Mortgage
Loans”);
WHEREAS,
pursuant to an assignment and assumption agreement dated as of September
1, 2007
(the “Assignment and Assumption Agreement”), between the Bank, as assignor, and
Xxxxxx Holdings, as assignee, annexed hereto as Exhibit L, the Bank has assigned all of
its
rights, title and interest in the Mortgage Loans to Xxxxxx Holdings, and
Xxxxxx
Holdings has accepted such assignment;
WHEREAS,
the Seller has conveyed the Mortgage Loans on a servicing-retained basis
to
Structured Asset Securities Corporation, a Delaware special purpose corporation
(the “Depositor”), pursuant to a mortgage loan sale and assignment agreement
dated as of September 1, 2007 (the “Mortgage Loan Sale and Assignment
Agreement”), which in turn has conveyed the Mortgage Loans to U.S. Bank National
Association, solely in its capacity as trustee (in such capacity, the
“Trustee”), under a trust agreement dated as of September 1, 2007 (the “Trust
Agreement”), among the Trustee, Aurora Loan Services LLC, as master servicer
(“Aurora,” and together with any successor Master Servicer appointed pursuant to
the provisions of the Trust Agreement, the “Master Servicer”) and the
Depositor;
WHEREAS,
from time to time certain other of the mortgage loans conveyed by the Depositor
to the Trustee under the Trust Agreement on the Closing Date and serviced
by
other servicers may subsequent to the Closing Date be transferred to the
Servicer for servicing under this Agreement, at which date the Depositor
shall
cause Exhibit A hereto to be amended to include such mortgage loans which
will
then be considered “Mortgage Loans” under this Agreement;
WHEREAS,
the Seller desires that the Servicer service the Mortgage Loans pursuant
to this
Agreement, and the Servicer has agreed to do so, subject to the right of
the
Seller with respect to the Mortgage Loans to terminate the rights and
obligations of the Servicer hereunder at any time as provided herein;
WHEREAS,
the Master Servicer shall be obligated under the Trust Agreement, among other
things, to supervise the servicing of the Mortgage Loans on behalf of the
Trustee, and shall have the right, under certain circumstances, to terminate
the
rights and obligations of the Servicer under this Servicing Agreement upon
the
occurrence and continuance of an Event of Default as provided
herein;
WHEREAS,
the Seller and the Servicer agree that the provisions of the Flow Servicing
Agreement shall not apply to the related Mortgage Loans for so long as such
Mortgage Loans remain subject to the provisions of the Trust
Agreement;
WHEREAS,
multiple classes of certificates (the “Certificates”), including the Class P and
the Class X Certificate, will be issued on the Closing Date pursuant to the
Trust Agreement and Xxxxxx Brothers Inc. or a nominee thereof is expected
to be
the initial registered holder of the Class P and Class X
Certificates;
WHEREAS,
subsequent to the Closing Date, Xxxxxx Brothers Inc. may to convey all of
its
rights, title and interest in and to the Class P and the Class X Certificates
and all payments and all other proceeds received thereunder to an owner trust
or
other special purpose entity in which it will hold the sole equity interest,
and
which trust or special purpose entity would issue net interest margin securities
(“NIM Securities”) through an indenture trust, such NIM Securities secured, in
part, by the payments on such Certificates (the “NIMS
Transaction”);
WHEREAS,
subsequent to the Closing Date, one or more insurers (collectively, the “NIMS
Insurer”) may each issue one or more insurance policies guaranteeing certain
payments under any such NIM Securities;
WHEREAS,
in the event there may be two or more individual insurers it is intended
that
the rights extended to the NIMS Insurer pursuant to this Agreement be allocated
among two or more individual insurers that issue insurance policies in
connection with the NIMS Transaction through an insurance agreement by and
among
such insurers and the parties to the NIMS Transaction;
WHEREAS,
the Seller and the Servicer acknowledge and agree that the Seller will assign
certain of its rights and obligations (excluding such Seller’s rights and
obligations as owner of the servicing rights relating to the Mortgage Loans
and
the Seller’s obligations pursuant to Section 9.01, all of which rights and
obligations will remain with the Seller or be delegated to or assumed by
the
Master Servicer) to the Depositor and the Depositor will assign all of its
rights (but not the obligations, except as provided in the Trust Agreement)
hereunder to the Trustee pursuant to the Trust Agreement, and that each
reference herein (other than with respect to the Seller’s ownership of servicing
rights) to the Seller is intended, unless otherwise specified, to mean the
Seller or the Trustee as assignee, whichever is the owner of the Mortgage
Loans
from time to time;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller, the Master Servicer and the Servicer hereby
agree as follows:
2
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows (except as otherwise agreed in writing
by
the parties):
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) of prudent
mortgage lending institutions that service mortgage loans of the same type
as
such Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with applicable state, local and federal laws,
rules and regulations; provided, further, that, unless otherwise specified
in
this Agreement, such mortgage servicing practices shall be undertaken in
accordance with the provisions of the Xxxxxx Xxx Guides.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan serviced pursuant to this Agreement under which the Mortgage
Interest Rate is adjusted from time to time in accordance with the terms
and
provisions of the related Mortgage Note.
Aggregate
Loan Balance:
At any
date of determination, the outstanding principal balance of the Mortgage
Loans
serviced hereunder.
Agreement:
This
Servicing Agreement and all amendments hereof and supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing Fees and Prepayment
Charges attributable to the Mortgage Loans, including but not limited to
interest received on funds deposited in the Custodial Account or any Escrow
Account, late charges, fees received with respect to checks or bank drafts
returned by the related bank for non-sufficient funds, assumption fees, optional
insurance administrative fees and all other incidental fees and
charges.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage
to
the party indicated therein, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
the
Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction,
if permitted by law.
Bank:
Xxxxxx
Brothers Bank, FSB or any successor thereto.
Bank
Mortgage Loans:
As
defined in the first Recital hereto.
Best
Efforts:
Efforts
determined to be reasonably diligent by the Seller or the Servicer, as the
case
may be, taking into account Accepted Servicing Practices. Such efforts do
not
require the Seller or Servicer, as the case may be, to enter into any
litigation, arbitration or other legal or quasi-legal proceeding, nor do
they
require the Seller or Servicer, as the case may be, to advance or expend
fees or
sums of money in addition to those specifically set forth in this
Agreement.
3
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking and
savings
and loan institutions in Colorado, Minnesota, Nebraska, Massachusetts or
New
York are authorized or obliged by law or executive order to be
closed.
Certificates:
Any or
all of the Certificates issued pursuant to the Trust Agreement.
Closing
Date:
September 28, 2007.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards of settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan documents.
Costs:
For any
Person, any claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses of such Person.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
3.03.
Custodians:
LaSalle
Bank National Association and U.S. Bank National Association, and their
respective successors in interest and assigns.
Cut-off
Date:
September 1, 2007.
Delinquent:
For
reporting purposes, a Mortgage Loan is “Delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or,
if
there is not such corresponding day (e.g., as when a 30-day month follows
a
31-day month in which a payment was due on the 31st
day of
such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding month.
Depositor:
Structured Asset Securities Corporation, or any successor in
interest.
Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the next
succeeding Business Day.
4
Distribution
Date:
Commencing in October 2007, the 25th day of each month (or if such day is
not a
Business Day, the next succeeding Business Day).
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace. With respect to the Mortgage Loans for which payment
from
the Mortgagor is due on a day other than the first day of the month, such
Mortgage Loans will be treated as if the Monthly Payment is due on the first
day
of the immediately succeeding month.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month immediately preceding the month of the Remittance Date and ending on
the
first day of the month of the Remittance Date.
Eligible
Deposit Account:
An
account that is maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution.
Eligible
Institution:
Any of
the following:
(i)
|
an
institution whose:
|
(A) commercial
paper, short-term debt obligations, or other short-term deposits are rated
at
least “A-1+” by S&P, “P-1” by Moody’s and “F1+” by Fitch, or long-term
unsecured debt obligations are rated at least “AA-” by S&P and “Aaa” by
Moody’s, if the amounts on deposit are to be held in the account for no more
than 365 days; or
(B) commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P, “P-1” by Moody’s and “F1” by
Fitch, or long-term unsecured debt obligations are rated at least “BBB+” by
S&P and “A2” by Moody’s, if the amounts on deposit are to be held in the
account for no more than 30 days and are not intended to be used as credit
enhancement (with respect to the ratings specified in this clause (i), in
each
case if such rating agency is a Rating Agency, and such applicable ratings
from
S&P, Xxxxx’x and Fitch, the “Required Ratings”).
Upon
the
loss of any applicable Required Rating set forth in this clause (i), the
accounts shall be transferred immediately (and in any case within not more
than
30 calendar days) to accounts which have the Required Rating. Furthermore,
commingling by the Servicer is acceptable at the A-2, P-1 and F1 rating level,
as applicable, if the Servicer is a bank, thrift or depository and provided
the
Servicer has the capability to immediately segregate funds and commence
remittance to an Eligible Deposit Account upon a downgrade; provided,
that
following a downgrade, withdrawal or suspension of such institution’s ratings
below such ratings set forth above, each account shall promptly (and in any
case
within not more than 30 calendar days) be transferred to accounts which have
the
Required Ratings;
(ii) the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity; or
5
(iii)
Xxxxxx Brothers Bank, FSB; provided,
that
following a downgrade, withdrawal or suspension of such institution’s short-term
rating below “A-2” by S&P, “P-1” by Moody’s or “F1” by Fitch, each account
shall promptly (and in any case not more than 30 calendar days) be transferred
to accounts that have the required ratings.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i)
direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii)
federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories, the Trustee, the Master Servicer
or
any agent of the Trustee or the Master Servicer, acting in its respective
commercial capacity) incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal or state banking authorities, so long as at the time
of
investment or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or
trust company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt or deposit obligations of such
holding
company or deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its two
highest long-term rating categories;
(iii)
repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv)
securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Loan Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from any Rating Agency;
6
(v)
commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi)
a
Qualified GIC;
(vii)
certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii)
any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that is acceptable to the NIMS
Insurer and would not adversely affect the then current rating by any Rating
Agency then rating the Certificates or the NIM Securities and has a short
term
rating of at least “A-1” or its equivalent by each Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges
and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects
fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time; provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Servicer in accordance with
the
Xxxxxx Xxx Guides.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
3.05.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any
event set forth in Section 8.01.
Xxxxxx
Mae:
The
Federal National Mortgage Association or any successor thereto.
7
Xxxxxx
Xxx Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx Servicers’ Guide.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer in accordance with the Xxxxxx
Mae
Guides.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
Xxxxxx
Mae:
The
Government National Mortgage Association or any successor thereto.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property including proceeds of any
hazard
or flood insurance policy, PMI Policy or LPMI Policy.
LBH:
Xxxxxx
Brothers Holdings Inc. or any successor in interest.
LBH
Mortgage Loans:
As
defined in the second Recital hereof.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, discounted
payoff,
trustee’s sale, foreclosure sale or otherwise, or the sale of the related REO
Property, if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
LPMI
Fee:
With
respect to each LPMI Loan, the portion of the Mortgage Interest Rate as set
forth on the related Mortgage Loan Schedule (which shall be payable solely
from
the interest portion of Monthly Payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds), which, during such period prior to the
required cancellation of the LPMI Policy, shall be used to pay the premium
due
on the related LPMI Policy.
LPMI
Loan:
A
Mortgage Loan covered by a LPMI Policy as set forth in the Mortgage Loan
Schedule or otherwise identified to the Servicer in writing.
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
pursuant to which the related premium is to be paid from payments of interest
made by the Mortgagor.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as provided in the Trust Agreement, then such
successor master servicer.
Maximum
Rate:
With
respect to any Adjustable Rate Mortgage Loan and any Due Period, the maximum
interest rate that may be charged the borrower under the related Mortgage
Note.
8
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Eligible Mortgage Loan:
Any
Mortgage Loan that has been designated by the Servicer as recordable in the
name
of MERS.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as agent for the holder
from
time to time of the Mortgage Note.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan (other than a Simple
Interest Mortgage Loan), an amount equal to the Monthly Payment (with the
interest portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Mortgage Loan on the Due Date in the
related Due Period, and that (i) was Delinquent (or deferred pursuant to
Section 3.01) at the close of business on the related Determination Date
and (ii) was not the subject of a previous Monthly Advance, but only to the
extent that such amount is expected, in the reasonable judgment of the Servicer,
to be recoverable from collections or other recoveries in respect of such
Mortgage Loan; provided,
for the
purpose of clarification, that the Servicer shall not be required to make
a
Monthly Advance for any payments of principal or interest with respect to
a
reduction in the value of a Mortgage Note upon the order of a bankruptcy
court
of competent jurisdiction. With respect to each Remittance Date and each
Simple
Interest Mortgage Loan, an amount equal to the interest accrued on such Mortgage
Loan through the related Due Date, but not received as of the close of business
on the last day of the related Due Period (net of the applicable Servicing
Fee),
but only to the extent that such amount is expected, in the reasonable judgment
of the Servicer, to be recoverable from collections or other recoveries in
respect of such Simple Interest Mortgage Loan. To the extent that the Servicer
determines that any such amount is not recoverable from collections or other
recoveries in respect of such Mortgage Loan, such determination shall be
evidenced by a certificate of a Servicing Officer delivered to the Master
Servicer and the NIMS Insurer setting forth such determination and the
procedures and considerations of the Servicer forming the basis of such
determination.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Moody’s:
Xxxxx’x
Investors Service, Inc. or any successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple
in real
property securing the Mortgage Note.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
3.14 hereof.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note after giving effect to any
Relief Act Reduction.
9
Mortgage
Loan:
An
individual Mortgage Loan that is the subject of this Agreement, each Mortgage
Loan subject to this Agreement being identified on the Mortgage Loan Schedule,
which Mortgage Loan includes without limitation the Mortgage Loan documents,
the
Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Master Servicer, which shall be equal to the Mortgage Interest Rate minus
the
applicable Servicing Fee.
Mortgage
Loan Schedule:
A
schedule of the Mortgage Loans setting forth information with respect to
such
Mortgage Loans as agreed to by the Seller, the Servicer and the Master Servicer,
including but not limited to (i) any MERS identification number (if available)
with respect to each MERS Mortgage Loan or MERS Eligible Mortgage Loan, (ii)
a
data field indicating whether such Mortgage Loan is insured under a PMI or
LPMI
Policy and identifying the related Qualified Insurer, (iii) a data field
indicating the applicable Custodian of the related Mortgage File, (iv) a
Prepayment Charge Schedule, (v) a data field indicating whether the Mortgage
Loan is subject to an early payment default repurchase obligation, and (vi)
a
data field designated “DSI” indicating whether such Mortgage Loan is a Simple
Interest Mortgage Loan. The Mortgage Loan Schedule may be amended from time
to
time to include additional mortgage loans which are transferred to the Servicer
by a Prior Servicer in a Servicing Transfer or, based on notice received
from
the Seller, the substitution of a Qualifying Substitute Mortgage Loan for
a
defective Mortgage Loan for a defective loan pursuant to Section 2.05 of
the
Trust Agreement.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the related Mortgage Interest Rate with respect
to
such Mortgage Loan, less the applicable Servicing Fee Rate.
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount of
the
payments received by the Servicer in the related Due Period allocable to
interest in respect of Simple Interest Mortgage Loans, calculated in accordance
with the Simple Interest Method, net of the related Servicing Fees, over
(b) 30
days’ interest at the weighted average (by principal balance) of the Net
Mortgage Rates of the Simple Interest Mortgage Loans as of the first day
of the
related Due Period, as determined by the Servicer, on the aggregate principal
balance of such Simple Interest Mortgage Loans for such Distribution Date,
carried to six decimal places, rounded down, and calculated on the basis
of a
360-day year consisting of twelve 30-day months. For this purpose, the amount
of
interest received in respect of the Simple Interest Mortgage Loans in any
month
shall be deemed (a) to include any Monthly Advances of interest made by the
Servicer in such month in respect of such Simple Interest Mortgage Loans
and (b)
to be reduced by any amounts paid to the Servicer in such month in reimbursement
of Monthly Advances previously made by the Servicer in respect of such Simple
Interest Mortgage Loans.
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Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates
of the
Simple Interest Mortgage Loans as of the first day of the related Due Period,
as
determined by the Servicer, on the aggregate principal balance of such Simple
Interest Mortgage Loans for such Remittance Date, carried to six decimal
places,
rounded down, and calculated on the basis of a 360-day year consisting of
twelve
30-day months, over (b) the amount of the payments received by the Servicer
in
the related Due Period allocable to interest in respect of such Simple Interest
Mortgage Loans, calculated in accordance with the Simple Interest Method,
net of
the related Servicing Fees.
NIM
Securities:
As
defined in the tenth Recital to this Agreement.
NIMS
Insurer:
As
defined in the eleventh Recital to this Agreement.
NIMS
Transaction:
As
defined in the tenth Recital to this Agreement.
Non-MERS
Eligible Mortgage Loan:
Any
Mortgage Loan other than a MERS Eligible Mortgage Loan.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Servicer, reasonably
acceptable to the Seller, the Trustee, the Master Servicer and the NIMS Insurer,
but which must be independent outside counsel with respect to any such opinion
of counsel concerning (i) the non-recordation of Mortgage Loans pursuant
to
Section 2.02 hereof and (ii) all federal income tax matters.
Participating
Entity:
Any
Subcontractor or Subservicer that is “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB; provided
that for
the purposes of the third paragraph of Section 7.04(c), a “Participating Entity”
shall be determined without respect to any threshold limitations in Instruction
2 to Item 1122 of Regulation AB.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
including any Bulk Policy or other primary mortgage insurance policy acquired
in
respect of all or certain of the Mortgage Loans, as required by this Agreement
or the Trust Agreement.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage
Loan
during the immediately preceding Prepayment Period in accordance with the
terms
thereof (but excluding any Servicer Prepayment Charge Payment
Amount).
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Prepayment
Charge Schedule:
A data
field in the Mortgage Loan Schedule which indicates the amount or method
of
calculation of the Prepayment Charge and the term during which it is imposed
with respect to a Mortgage Loan.
Prepayment
Interest Excess Amount:
With
respect to any Principal Prepayment in full which is applied to the related
Mortgage Loan from the first day of the month of any Remittance Date through
the
sixteenth day of the month of such Remittance Date, all amounts paid in respect
of interest on such Principal Prepayment in full. A Prepayment Interest Excess
Amount cannot result from a Principal Prepayment in part, but only from a
Principal Prepayment in full.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied
to such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net of the related Servicing Fee for Principal Prepayments
in full only) that would have accrued on the amount of such Principal Prepayment
during the period commencing on the date as of which such Principal Prepayment
was applied to such Mortgage Loan and ending on the day immediately preceding
such Due Date, inclusive.
Prepayment
Period:
With
respect to any Remittance Date and a Principal Prepayment in full, the period
from the seventeenth day of the month immediately preceding the month of
such
Remittance Date to the sixteenth day of the month of such Remittance Date;
provided
that,
the
first Prepayment Period shall commence on September 1, 2007 and end on October
16, 2007. With respect to any Remittance Date and any Principal Prepayment
in
part, the calendar month immediately preceding the month of such Remittance
Date.
Prime
Rate:
The
prime rate published from time to time, as published as the average rate
in
The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date and which is not accompanied by an amount
of
interest representing scheduled interest due on any date or dates in any
month
or months subsequent to the month of prepayment.
Prior
Servicer:
Any
prior servicer (other than the Servicer) of any of the Mortgage
Loans.
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Custodial Account and insuring a minimum, fixed or floating
rate of
return on investments of such funds, which contract or surety bond
shall:
(i)
be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
12
(ii)
provide
that the Servicer may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(iii)
provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(iv)
provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Custodial Account not later than the Business Day prior to any Remittance
Date.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Rating
Agency:
Each of
Fitch, Xxxxx’x and S&P or their successors. If such agencies or their
successors are no longer in existence, “Rating Agencies” shall be such
nationally recognized statistical rating agencies, or other comparable person,
designated by the Seller, notice of which designation shall be given to the
NIMS
Insurer, the Master Servicer and the Servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,631 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application
of the
Servicemembers Civil Relief Act or similar state or local law, any amount
by
which interest collectible on such Mortgage Loan for the Due Date in the
related
Due Period is less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without giving effect to such
reduction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any month.
REO
Disposition:
The
final sale or other disposition by the Servicer of any REO
Property.
13
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section 3.16
hereof.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trustee through
foreclosure or by deed in lieu of foreclosure pursuant to Section 3.16
hereof.
Residual
Certificate:
The
Class R Certificate.
Retained
Interest:
Not
applicable.
Retained
Interest Holder:
Not
applicable.
Retained
Interest Rate:
Not
applicable.
S&P:
Standard and Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. or any successor in interest.
Seller:
LBH.
Servicer:
Aurora
Loan Services LLC or its successor in interest or assigns or any successor
to
the Servicer under this Agreement as herein provided.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by the Servicer in respect of any impermissibly waived Prepayment
Charges pursuant to Section 3.19 hereof.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, inspection,
restoration and protection of the Mortgaged Property, (b) any enforcement
or
administrative or judicial proceedings, including foreclosures and bankruptcies,
(c) the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage, (d) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien
upon
the Mortgaged Property, (e) PMI Policy premiums and fire and hazard insurance
coverage, (f) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (g) compliance with the obligations
pursuant to the provisions of the Xxxxxx Mae Guides.
Servicing
Fee:
An
amount equal to (a) one-twelfth the product of (i) either (1) a rate per
annum
equal to 0.250% for all fixed rate Mortgage Loans and for all Adjustable
Rate
Mortgage Loans during the fixed period of such Adjustable Rate Mortgage Loan,
(2) a rate per annum equal to 0.250% for Adjustable Rate Mortgage Loans which
have principal balances at origination that do not conform to the Xxxxxxx
Mac
and Xxxxxx Mae guidelines, at any time after the fixed period of such Adjustable
Rate Mortgage Loan or (3) a rate per annum equal to 0.375% for those Adjustable
Rate Mortgage Loans which have principal balances at origination that conform
to
the Xxxxxxx Mac and Xxxxxx Mae guidelines (such Adjustable Rate Mortgage
Loans
are set forth on Exhibit K hereto), at any time after the fixed period of
such
Adjustable Rate Mortgage Loans and (ii) the outstanding principal balance
of
such Mortgage Loan and (b) any Prepayment Interest Excess Amount. The
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds) of such Monthly Payment collected by the Servicer or as otherwise
provided under this Agreement.
14
Servicing
File:
The
items pertaining to a particular Mortgage Loan including, but not limited
to,
the computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating
and/or
servicing each Mortgage Loan, which are held in trust for the Trustee by
the
Servicer.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer or Seller upon
request, as such list may from time to time be amended.
Servicing
Transfer:
Any
transfer of the servicing by a Prior Servicer of Mortgage Loans to the Servicer
under this Agreement.
Servicing
Transfer Date:
The
date on which a Servicing Transfer occurs.
Simple
Interest Method:
The
method of allocating a payment to principal and interest, pursuant to which
the
portion of such payment that is allocated to interest is equal to the product
of
the applicable rate of interest multiplied by the unpaid principal balance
multiplied by the period of time elapsed since the preceding payment of interest
was made and divided by either 360 or 365, as specified in the related Mortgage
Note and the remainder of such payment is allocated to principal.
Simple
Interest Mortgage Loan:
Those
simple interest loans as noted on the Mortgage Loan Schedule under the data
field designated “DSI.”
Subcontractor:
Any
vendor, subcontractor or other
Person
(determined solely by the Servicer) that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one
or
more discrete functions identified in Item 1122(d) of Regulation AB with
respect
to the Mortgage Loans under the direction or authority of the Servicer or
a
related Subservicer.
Subservicer:
Any
Person (determined solely by the Servicer) that services Mortgage Loans on
behalf of the Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Servicer under this Agreement that are identified in Item 1122(d) of Regulation
AB.
Trust
Agreement:
The
Trust Agreement dated as of September 1, 2007, among
the
Trustee, the Master Servicer and the Depositor.
Trust
Fund:
The
trust fund established by the Trust Agreement, the assets of which consist
of
the Mortgage Loans and any related assets.
15
Trustee:
U.S.
Bank, National Association or any successor in interest, or if any successor
trustee or co-trustee shall be appointed as provided in the Trust Agreement,
then such successor trustee or such co-trustee, as the case may be.
Any
capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to such terms in the Trust Agreement.
ARTICLE
II.
SELLER’S
ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section
2.01 Contract
for Servicing; Possession of Servicing Files.
The
Seller, by execution and delivery of this Agreement, does hereby contract
with
the Servicer, subject to the terms of this Agreement, for the servicing
of the
Mortgage Loans. On or before the Closing Date or Servicing Transfer Date,
as
applicable, the Seller shall cause to be delivered the Servicing Files
with
respect to the Mortgage Loans listed on the Mortgage Loan Schedule to the
Servicer. Each Servicing File delivered to the Servicer shall be held in
trust
by the Servicer for the benefit of the Trustee; provided,
however,
that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller. The Servicer’s possession of any portion of the
Mortgage Loan documents shall be at the will of the Trustee for the sole
purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in
a
custodial capacity only. The ownership of each Mortgage Note, Mortgage,
and the
contents of the Servicing File shall be vested in the Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan
prepared
by or which come into the possession of the Servicer shall immediately
vest in
the Trustee and shall be retained and maintained, in trust, by the Servicer
at
the will of the Trustee in such custodial capacity only. The portion of
each
Servicing File retained by the Servicer pursuant to this Agreement, which,
except for collateral documents such as the Mortgage and the Mortgage Note,
may
be stored as imaged files, shall be segregated from the other books and
records
of the Servicer and shall be appropriately marked to clearly reflect the
ownership of the related Mortgage Loan by the Trustee. The Servicer shall
release from its custody the contents of any Servicing File retained by
it only
in accordance with this Agreement.
Section
2.02 Books
and Records.
(a)
Subject
to Section 3.01(a) hereof, as soon as practicable after the Closing Date,
the
Servicing Transfer Date or the date on which a Qualifying Substitute Mortgage
Loan is delivered pursuant to Section 2.05 of the Trust Agreement, as applicable
(but in no event more than 90 days thereafter except to the extent delays
are
caused by the applicable recording office), the Servicer, at the expense
of the
Depositor, shall cause the Mortgage or Assignment of Mortgage, as applicable,
with respect to each MERS Eligible Mortgage Loan, to be properly recorded
in the
name of MERS in the public recording office in the applicable jurisdiction,
or
shall ascertain that such have previously been so recorded and, with the
cooperation of the Trustee, shall take such actions as are necessary to
cause
the Trustee to be clearly identified as the owner of each MERS Mortgage
Loan and
each MERS Eligible Mortgage Loan on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS.
16
(b)
Subject
to Section 3.01(a) hereof, an Assignment of Mortgage in favor of the Trustee
shall be recorded as to each Non-MERS Mortgage Loan unless instructions
to the
contrary are delivered to the Servicer, in writing, by the Trustee. Subject
to
the preceding sentence, as soon as practicable after the Closing Date or
Servicing Transfer Date, as applicable (but in no event more than 90 days
thereafter except to the extent delays are caused by the applicable recording
office), the Servicer, at the expense of the Seller on behalf of the Depositor,
shall cause to be properly recorded in each public recording office where
such
Non-MERS Eligible Mortgage Loans are recorded each Assignment of Mortgage.
Notwithstanding the foregoing, the Servicer shall not cause to be recorded
any
Assignment which relates to a Mortgage Loan in a jurisdiction where the
Rating
Agencies do not require recordation; provided
further,
notwithstanding the foregoing, upon the occurrence of certain events set
forth
in the Trust Agreement, each such assignment of Mortgage shall be recorded
by
the Master Servicer as set forth in the Trust Agreement.
(c)
Additionally,
the Servicer shall prepare and execute any note endorsements relating to
any of
the Non-MERS Mortgage Loans.
(d)
All
rights arising out of the Mortgage Loans shall be vested in the Trustee,
subject
to the Servicer’s right to service and administer the Mortgage Loans hereunder
in accordance with the terms of this Agreement. All funds received on or
in
connection with a Mortgage Loan, other than the Servicing Fee and other
compensation to which the Servicer is entitled as set forth herein, including
but not limited to any and all servicing compensation pursuant to Section
5.01
below, shall be received and held by the Servicer in trust for the benefit
of
the Trustee pursuant to the terms of this Agreement.
(e)
Any
out-of-pocket costs incurred by the Servicer pursuant to this Section 2.02
and
Section 3.01(a), including any recording or other fees in connection with
the
Servicer’s obtaining the necessary powers of attorney (and which are specified
herein to be an expense of the Seller) shall be reimbursed to the Servicer
by
the Seller within five (5) Business Days of receipt by the Seller of an
invoice
for reimbursement. Neither the Trustee nor the Trust Fund shall have any
obligation to reimburse the Seller for any such reimbursement made to the
Servicer.
ARTICLE
III.
SERVICING
OF THE MORTGAGE LOANS
Section
3.01 Servicer
to Service.
The
Servicer, as an independent contractor, shall service and administer the
Mortgage Loans from and after the Closing Date or Servicing Transfer Date,
as
applicable, and shall have full power and authority, acting alone, to do
any and
all things in connection with such servicing and administration which the
Servicer may deem necessary or desirable, consistent with the terms of
this
Agreement and with Accepted Servicing Practices.
17
The
Seller, the Master Servicer and the Servicer additionally agree that the
Servicer has and will continue to fully furnish, in accordance with the
Fair
Credit Reporting Act of 1970, as amended (the “Fair Credit Reporting Act”) and
its implementing regulations, accurate and complete information (e.g.,
favorable
and unfavorable) on its borrower credit files to Equifax, Experian and
Trans
Union Credit Information Company (three of the credit repositories), on
a
monthly basis. In addition, with respect to any Mortgage Loan serviced
for a
Xxxxxx Xxx pool, the Servicer shall transmit full credit reporting data
to each
of such credit repositories in accordance with Xxxxxx Mae Guide Announcement
95-19 (November 11, 1995), a copy of which is attached hereto as Exhibit
G,
reporting each of the following statuses each month with respect to a Mortgage
Loan in a Xxxxxx Xxx pool: new origination, current, delinquent (30-60-90-days,
etc), foreclosed or charged off.
The
Seller and the Servicer additionally agree as follows:
(a)
The
Servicer shall (A) record or cause to be recorded the Mortgage or the Assignment
of Mortgage, as applicable, with respect to all MERS Eligible Mortgage
Loans, in
the name of MERS, or shall ascertain that such have previously been so
recorded;
(B) with the cooperation of the Trustee, take such actions as are necessary
to
cause the Trustee to be clearly identified as the owner of each MERS Mortgage
Loan and each MERS Eligible Mortgage Loan on the records of MERS for purposes
of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS; (iii) prepare or cause to be prepared all Assignments
of
Mortgage with respect to all Non-MERS Eligible Mortgage Loans; (C) record
or
cause to be recorded, subject to Section 2.02(b) hereof, all Assignments
of
Mortgage with respect to Non-MERS Mortgage Loans in the name of the Trustee;
(D)
pay the recording costs pursuant to Section 2.02 hereof; and/or (E) track
such
Mortgages and Assignments of Mortgage to ensure they have been recorded.
The
Servicer shall be entitled to be reimbursed by the Seller for the fees
in
connection with the preparation and recordation of the Mortgages and Assignments
of Mortgage. After the fees and expenses of recording incurred by the Servicer
pursuant to Section 2.02 and this Section 3.01(a) hereof shall have been
paid by
the Servicer, the Servicer shall submit to the Seller a reasonably detailed
invoice for reimbursement of such costs and expenses.
(b)
If
applicable, the Servicer shall, in accordance with the relevant provisions
of
the Xxxxxxxx-Xxxxxxxx National Affordable Housing Act of 1990, as the same
may
be amended from time to time, and the regulations provided in accordance
with
the Real Estate Settlement Procedures Act, provide notice to the Mortgagor
of
each Mortgage Loan of the transfer of the servicing thereto to the
Servicer.
(c)
The
Servicer shall be responsible for the preparation of and costs associated
with
notifications to Mortgagors of the assumption of servicing by the
Servicer.
Consistent
with the terms of this Agreement, the Servicer may waive any late payment
charge, assumption fee or other fee that may be collected in the ordinary
course
of servicing the Mortgage Loans. The Servicer may make such modifications
as it
deems to be in the best interests of the Trust Fund; provided, for purposes
of
clarification, that any such actions taken in connection therewith may
be taken
without regard to the Xxxxxx Xxx Guides. The Servicer shall not make any
future
advances to any obligor under any Mortgage Loan, and (unless the Mortgagor
is in
default with respect to the Mortgage Loan or such default is, in the judgment
of
the Servicer, reasonably foreseeable) the Servicer shall not permit any
modification of any material term of any Mortgage Loan, including any
modification that would change the Mortgage Interest Rate (other than for
modifications relating to a Relief Act Reduction), defer or forgive the
payment
of principal or interest, reduce or increase the outstanding principal
balance
(except for actual payments of principal) or change the final maturity
date on
such Mortgage Loan; provided, however, that the Maturity Date of any Mortgage
Loan shall not be extended past the Final Scheduled Distribution Date (as
defined in the Trust Agreement), which is October 2037. In the event of
any such
modification, the Servicer shall calculate the Monthly Payment for such
Mortgage
Loan based on the modified terms of such Mortgage Loan and shall only be
required to make Monthly Advances pursuant to Section 4.03 to the extent
of such
new Monthly Payment. Without limiting the generality of the foregoing,
the
Servicer shall continue, and is hereby authorized and empowered, to execute
and
deliver on behalf of itself and the Trustee, all instruments of satisfaction
or
cancellation, or of partial or full release, discharge or note endorsements
and
all other comparable instruments, with respect to the Mortgage Loans and
with
respect to the Mortgaged Properties; provided, further, that upon the full
release or discharge, the Servicer shall notify the related Custodian of
the
related Mortgage Loan of such full release or discharge. Upon the request
of the
Servicer, the Trustee shall execute and deliver to the Servicer any powers
of
attorney and other documents, furnished to it by the Servicer and reasonably
satisfactory to the Trustee, necessary or appropriate to enable the Servicer
to
carry out its servicing and administrative duties under this Agreement;
provided
that
the
Trustee shall not be liable for the actions of the Servicer under such
powers of
attorney. Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall forward
to
the Master Servicer copies of any documents evidencing such assumption,
modification, consolidation or extension. Notwithstanding anything to the
contrary contained in this Agreement, the Servicer shall not otherwise
make or
permit any modification, waiver or amendment of any term of any Mortgage
Loan
that would cause any REMIC created under the Trust Agreement to fail to
qualify
as a REMIC or result in the imposition of any tax under Section 860F(a)
or
Section 860G(d) of the Code.
18
The
Servicer shall not without the Trustee’s written consent: (i) initiate any
action, suit or proceedings solely under the Trustee’s name without indicating
the Servicer’s representative capacity or (ii) take any action with the intent
to cause, and which actually does cause, the Trustee to be registered to
do
business in any state. The Servicer shall indemnify the Trustee for any
and all
costs, liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse of such powers of attorney by the
Servicer.
Notwithstanding
anything to the contrary in this Agreement, the Servicer shall not (unless
the
Servicer determines, in its own discretion, that there exists a situation
of
extreme hardship to the Mortgagor), waive any premium or penalty in connection
with a prepayment of principal of any Mortgage Loan, and shall not consent
to
the modification of any Mortgage Note to the extent that such modification
relates to payment of a Prepayment Charge except as provided in Section
3.19
hereof.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures (including collection procedures) and exercise the same care
that it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
the Xxxxxx Xxx Guides, and the Master Servicer’s and the Seller’s reliance on
the Servicer.
19
Section
3.02 Collection
of Mortgage Loan Payments.
Continuously
from the Closing Date or Servicing Transfer Date, as applicable, until
the date
that each Mortgage Loan ceases to be subject to this Agreement, the Servicer
shall proceed diligently to collect all payments due under each of the
Mortgage
Loans when the same shall become due and payable and shall take special
care in
ascertaining and estimating Escrow Payments and all other charges that
will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and
payable.
The Servicer shall also apply payments of interest and principal against
any
Simple Interest Mortgage Loans using the Simple Interest Method.
Section
3.03 Establishment
of and Deposits to Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts,
in the
form of time deposit or demand accounts, titled, as directed by the Master
Servicer, “Aurora Loan Services LLC in trust for the Trustee for Xxxxxx XS Trust
Mortgage Pass-Through Certificates, Series 2007-17H.” The Custodial Account
shall be an Eligible Deposit Account established with an Eligible Institution.
Any funds deposited in the Custodial Account may be invested in Eligible
Investments subject to the provisions of Section 3.11 hereof. Funds deposited
in
the Custodial Account may be drawn on by the Servicer in accordance with
Section
3.04. The creation of any Custodial Account shall be evidenced by a
certification notice in the form of Exhibit B. A copy of such certification
notice shall be furnished to the Master Servicer and the NIMS Insurer no
later
than 30 days after the Closing Date and, upon request, to any subsequent
owner
of the Mortgage Loans.
The
Servicer shall deposit in the Custodial Account within two Business Days
of
receipt, and retain therein, the following collections received by the
Servicer
and payments made by the Servicer after the Cut-off Date (other than scheduled
payments of principal and interest due on or before the Cut-off Date) or
received by the Servicer prior to the Cut-off Date but allocable to the
period
subsequent thereto) or Servicing Transfer Date, as applicable:
(i)
all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Prepayment Charges or any Servicer Prepayment Charge Payment Amounts to
be paid
by the Servicer to the Trust Fund;
(iv)
all
Liquidation Proceeds;
20
(v)
all
Insurance Proceeds (other than amounts applied to the restoration or repair
of
the Mortgaged Property or immediately released to the Mortgagor in accordance
with Accepted Servicing Practices);
(vi)
all
Condemnation Proceeds that are not applied to the restoration or repair
of the
Mortgaged Property or released to the Mortgagor;
(vii)
with
respect to each Principal Prepayment in full or in part, the Prepayment
Interest
Shortfall Amount, if any, for the month of distribution, made from the
Servicer’s own funds, without reimbursement therefor up to a maximum amount per
month of the Servicing Fee actually received for the Mortgage
Loans;
(viii)
all
Monthly Advances made by the Servicer pursuant to Section 4.03;
(ix)
any
amounts required to be deposited by the Servicer in connection with the
deductible clause in any blanket hazard insurance policy;
(x)
any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xi)
any
amounts required to be deposited by the Servicer pursuant to Section 3.07
in
connection with any unpaid claims that are a result of a breach by the
Servicer
or any Subservicer of the obligations hereunder or under the terms of a
PMI
Policy;
(xii)
any
amounts received by the Servicer under a PMI or LPMI Policy pursuant to
Section
3.07; and
(xiii)
any
other
amount required hereunder to be deposited by the Servicer in the Custodial
Account.
The
Servicer shall also deposit from its own funds into the Custodial Account,
without the right to reimbursement, except from Net Simple Interest Excess,
an
amount equal to any Net Simple Interest Shortfall (to the extent not offset
by
Net Simple Interest Excess) for the related Due Period and remit such funds
to
the Master Servicer pursuant to Section 4.01.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the Servicing Fee and Ancillary
Income need not be deposited by the Servicer into the Custodial
Account.
Any
interest paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Servicer and the Servicer
shall
be entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 3.04. Additionally, any other benefit derived from
the
Custodial Account associated with the receipt, disbursement and accumulation
of
principal, interest, taxes, hazard insurance, mortgage insurance, etc.
shall
accrue to the Servicer.
21
Section
3.04 Permitted
Withdrawals From Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i)
to
make
payments to the Master Servicer in the amounts and in the manner provided
for in
Section 4.01;
(ii)
with
respect to each LPMI Loan, in the amount of the related LPMI Fee, to make
payments with respect to premiums for LPMI Policies in accordance with
Section
3.07;
(iii)
in
the
event the Servicer has elected not to retain the Servicing Fee out of any
Mortgagor payments on account of interest or other recovery of interest
with
respect to a particular Mortgage Loan (including late collections of interest
on
such Mortgage Loan, or interest portions of Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds) prior to the deposit of such Mortgagor
payment
or recovery in the Custodial Account, to pay to itself the related Servicing
Fee
from all such Mortgagor payments on account of interest or other such recovery
for interest with respect to that Mortgage Loan;
(iv)
to
pay
itself investment earnings on funds deposited in the Custodial
Account;
(v)
to
clear
and terminate the Custodial Account upon the termination of this Agreement;
(vi)
to
transfer funds to another Eligible Institution in accordance with Section
3.11
hereof;
(vii)
to
invest
funds in certain Eligible Investments in accordance with Section 3.11 hereof;
(viii)
to
reimburse itself to the extent of funds in the Custodial Account for Monthly
Advances of the Servicer’s funds made pursuant to Section 4.03, the Servicer’s
right to reimburse itself pursuant to this subclause (viii) with respect
to any
Mortgage Loan being limited to amounts received on or in respect of the
related
Mortgage Loan which represent late recoveries of payments of principal
or
interest with respect to which a Monthly Advance was made, it being understood
that, in the case of any such reimbursement, the Servicer’s right thereto shall
be prior to the rights of the Trust Fund, provided,
however,
that
following the final liquidation of a Mortgage Loan, the Servicer may reimburse
itself for previously unreimbursed Monthly Advances in excess of Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loan from
any funds
in the Custodial Account, it being understood, in the case of any such
reimbursement, that the Servicer’s right thereto shall be prior to the rights of
the Trust Fund. The Servicer may recover at any time from amounts on deposit
in
the Custodial Account the amount of any Monthly Advances that the Servicer
deems
nonrecoverable or that remain unreimbursed to the Servicer from related
Liquidation Proceeds after the final liquidation of the Mortgage
Loan;
22
(ix)
to
reimburse itself for unreimbursed Servicing Advances, and for any unpaid
Servicing Fees, the Servicer’s right to reimburse itself pursuant to this
subclause (ix) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and other amounts received in respect of the related REO Property,
and
such other amounts as may be collected by the Servicer from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood that, in the
case
of any such reimbursement, the Servicer’s right thereto shall be prior to the
rights of the Trust Fund;
(x)
to
reimburse itself for remaining unreimbursed Servicing Advances with respect
to
any defaulted Mortgage Loan as to which the Servicer has determined that
all
amounts that it expects to recover on behalf of the Trust Fund or on account
of
such Mortgage Loan have been recovered;
(xi)
to
pay
itself an amount equal to the Net Simple Interest Excess for the related
Due
Period to the extent not offset by Net Simple Interest Shortfalls;
(xii)
to
reimburse itself for expenses incurred or reimbursable to the Servicer
pursuant
to Sections 3.12 and 6.03 to the extent not previously reimbursed under
clause
(ix) of this Section 3.04; and
(xiii)
to
withdraw any funds deposited to the Custodial Account in error.
Section
3.05 Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any
of its
own funds and general assets and shall establish and maintain one or more
Escrow
Accounts, in the form of time deposit or demand accounts, titled, as directed
by
the Master Servicer, “Aurora Loan Services LLC in trust for the Trustee for the
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-17H.” Each
Escrow Account shall be an Eligible Deposit Account established with an
Eligible
Institution in a manner that shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the
Servicer in accordance with Section 3.06. The creation of any Escrow Account
shall be evidenced by a letter agreement in the form of Exhibit C. A copy
of
such certification or letter agreement shall be furnished to the Master
Servicer
and the NIMS Insurer no later than 30 days after the Closing Date and,
upon
request, to any subsequent owner of the Mortgage Loans.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i)
all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms
of this
Agreement; and
(ii)
all
amounts representing Insurance Proceeds or Condemnation Proceeds that are
to be
applied to the restoration or repair of any Mortgaged Property.
23
The
Servicer shall make withdrawals from the Escrow Account only to effect
such
payments as are required under this Agreement, as set forth in Section
3.06. The
Servicer shall retain any interest paid on funds deposited in the Escrow
Account
by the depository institution, other than interest on escrowed funds required
by
law to be paid to the Mortgagor. Additionally, any other benefit derived
from
the Escrow Account associated with the receipt, disbursement and accumulation
of
principal, interest, taxes, hazard insurance, mortgage insurance, etc.
shall
accrue to the Servicer. To the extent required by law, the Servicer shall
pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section
3.06 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
(i)
to
effect
timely payments of ground rents, taxes, assessments, water rates, sewer
rents,
mortgage insurance premiums, condominium charges, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related
Mortgage;
(ii)
to
refund
to any Mortgagor any funds found to be in excess of the amounts required
under
the terms of the related Mortgage Loan;
(iii)
for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(iv)
to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late collections of Escrow
Payments;
(v)
for
application to restoration or repair of the Mortgaged Property in accordance
with Xxxxxx Xxx Guides or other similar prudent servicing practices;
(vi)
to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(vii)
to
withdraw any funds inadvertently deposited into the Escrow Account by the
Servicer in error; and
(viii)
to
clear
and terminate the Escrow Account on the termination of this
Agreement.
Section
3.07 Maintenance
of PMI Policy and/or LPMI Policy; Claims.
(a)
The
Servicer shall comply with all provisions of applicable state and federal
law
relating to the cancellation of, or collection of premiums with respect
to, PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as
amended
from time to time. The Servicer shall be obligated to make premium payments
with
respect to (a) LPMI Policies, to the extent of the LPMI Fee set forth on
the
Mortgage Loan Schedule with respect to any LPMI Loans, and (b) in the case
of
PMI Policies required to be maintained by the Mortgagor rather than the
Seller
or the Trust Fund, if the Mortgagor is required but fails to pay any PMI
Policy
premium, such PMI Policy.
24
With
respect to each Mortgage Loan (other than LPMI Loans) with a loan-to-value
ratio
at origination in excess of 80%, the Servicer shall maintain or cause the
Mortgagor to maintain (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance) in full force and effect a PMI Policy,
and
shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely
basis, until the LTV of such Mortgage Loan is reduced to 80%. In the event
that
such PMI Policy shall be terminated, the Servicer shall obtain from another
Qualified Insurer a comparable replacement policy, with a total coverage
equal
to the remaining coverage of such terminated PMI Policy, at substantially
the
same fee level. The Servicer shall not take any action which would result
in
noncoverage under any applicable PMI Policy of any loss which, but for
the
actions of the Servicer would have been covered thereunder. In connection
with
any assumption or substitution agreements entered into or to be entered
into
with respect to a Mortgage Loan, the Servicer shall promptly notify the
insurer
under the related PMI Policy, if any, of such assumption or substitution
of
liability in accordance with the terms of such PMI Policy and shall take
all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as
a result
of such assumption or substitution of liability, the Servicer shall obtain
a
replacement PMI Policy as provided above.
(b)
With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the
Servicer shall take all such actions on behalf of the Trustee as are necessary
to service, maintain and administer the related Mortgage Loan in accordance
with
either such policy and to enforce the rights under such policy. Except
as
expressly set forth herein, the Servicer shall have full authority on behalf
of
the Trust Fund to do anything it deems appropriate or desirable in connection
with the servicing, maintenance and administration of such policy; provided
that
the
Servicer shall not take, or permit any Subservicer to modify or assume,
a
Mortgage Loan covered by a LPMI Policy or PMI Policy or take any other
action
with respect to such Mortgage Loan which would result in non-coverage under
such
policy of any loss which, but for actions of the Servicer or the Subservicers,
would have been covered thereunder. If the Qualified Insurer fails to pay
a
claim under a LPMI Policy or PMI Policy as a result of a breach by the
Servicer
or Subservicer of its obligations hereunder or under either such policy,
the
Servicer shall be required to deposit in the Custodial Account on or prior
to
the next succeeding Remittance Date an amount equal to such unpaid claim
from
its own funds without any rights to reimbursement from the Trust Fund.
The
Servicer shall cooperate with the Qualified Insurers and shall use its
Best
Efforts to furnish all reasonable evidence and information in the possession
of
the Servicer to which the Servicer has access with respect to the related
Mortgage Loan; provided,
however,
notwithstanding anything to the contrary contained in any LPMI Policy or
PMI
Policy, the Servicer shall not be required to submit any reports to the
related
Qualified Insurer until a reporting date that is at least 15 days after
the
Servicer has received sufficient loan level information from the Seller
to
appropriately code its servicing systems in accordance with the Qualified
Insurer’s requirements.
(c)
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Trustee, claims to the Qualified Insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with
the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such
action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Servicer
under any PMI Policy or LPMI Policy shall be deposited in the Custodial
Account
pursuant to Section 3.03(xii), subject to withdrawal pursuant to Section
3.04.
25
(d)
The
Trustee shall furnish the Servicer with any powers of attorney and other
documents (within three (3) Business Days upon request from the Servicer)
in
form as provided to it necessary or appropriate to enable the Servicer
to
service and administer any PMI or LPMI Policy; provided,
however,
that the
Trustee shall not be liable for the actions of the Servicer under such
power of
attorney.
Section
3.08 Fidelity
Bond and Errors and Omissions Insurance.
The
Servicer shall keep in force during the term of this Agreement a Fidelity
Bond
and Errors and Omissions Insurance Policy. Such Fidelity Bond and Errors
and
Omissions Insurance Policy shall be maintained with recognized insurers
and
shall be in such form and amount as would permit the Servicer to be qualified
as
a Xxxxxx Xxx or Xxxxxxx Mac seller-servicer. The Servicer shall be deemed
to
have complied with this provision if an affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
the Servicer. The Servicer shall furnish to the Master Servicer and the
NIMS
Insurer a copy of each such bond and insurance policy if (i) the Master
Servicer
and the NIMS Insurer so request and (ii) the Servicer is not an affiliate
of
Xxxxxx Brothers Inc. at the time of such request.
Section
3.09 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust
the
Mortgage Interest Rate on the related interest rate adjustment date and
shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of
the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate
and
Monthly Payment adjustments. The Servicer shall promptly, upon written
request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Servicer or the receipt
of
notice from the Master Servicer that the Servicer has failed to adjust
a
Mortgage Interest Rate or Monthly Payment in accordance with the terms
of the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral
caused
thereby.
Section
3.10 Completion
and Recordation of Assignments of Mortgage.
As
soon
as practicable after the Closing Date, the Servicing Transfer Date or the
date
on which a Qualifying Substitute Mortgage Loan is delivered pursuant to
Section
2.05 of the Trust Agreement, as applicable (but in no event more than 90
days
thereafter except to the extent delays are caused by the applicable public
recording office), the Servicer shall cause the endorsements on the Mortgage
Note (if applicable) and the Assignments of Mortgage (subject to Section
3.01(a)), to be completed in the name of the Trustee (or MERS, as
applicable).
26
Section
3.11 Protection
of Accounts.
The
Servicer may transfer any Custodial Account or any Escrow Account to a
different
Eligible Institution from time to time, provided
that in
the event the Custodial Account or any Escrow Account is held in a depository
institution or trust company that ceases to be an Eligible Institution,
the
Servicer shall transfer such Custodial Account or Escrow Account, as the
case
may be, to an Eligible Institution. The Servicer shall give notice to the
Master
Servicer and the NIMS Insurer of any change in the location of the Custodial
Account no later than 30 days after any such transfer is made and deliver
to the
Master Servicer and the NIMS Insurer a certification notice in the form
of
Exhibit B or Exhibit C, as applicable, with respect to such Eligible
Institution.
The
Servicer shall bear any expenses, losses or damages sustained by the Master
Servicer or the Trustee if the Custodial Account and/or the Escrow Account
are
not demand deposit accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Servicer be invested in Eligible Investments. Any such Eligible Investment
shall mature no later than the Business Day immediately preceding the related
Remittance Date; provided,
however,
that if
such Eligible Investment is an obligation of an Eligible Institution (other
than
the Servicer) that maintains the Custodial Account or the Escrow Account,
then
such Eligible Investment may mature on the related Remittance Date. Any
such
Eligible Investment shall be made in the name of the Servicer in trust
for the
benefit of the Trustee. All income on or gain realized from any such Eligible
Investment shall be for the benefit of the Servicer and may be withdrawn
at any
time by the Servicer. Any losses incurred in respect of any such investment
shall be deposited in the Custodial Account or the Escrow Account, by the
Servicer out of its own funds immediately as realized.
Section
3.12 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan which provides for Escrow Payments, the Servicer
shall maintain accurate records reflecting the status of ground rents,
taxes,
assessments, water rates, sewer rents, and other charges which are or may
become
a lien upon the Mortgaged Property and the status of PMI Policy and LPMI
Policy
(if any) premiums and fire and hazard insurance coverage and shall obtain,
from
time to time, all bills for the payment of such charges (including renewal
premiums) and shall effect payment thereof prior to the applicable penalty
or
termination date, employing for such purpose deposits of the Mortgagor
in the
Escrow Account which shall have been estimated and accumulated by the Servicer
in amounts sufficient for such purposes, as allowed under the terms of
the
Mortgage. The Servicer shall not be required to maintain records with respect
to
the payment of the LPMI Premiums unless the Servicer shall be required
to make
payment of such premiums and such requirement shall be indicated on the
Mortgage
Loan Schedule with respect to each applicable Mortgage Loan. The Servicer
assumes full responsibility for the timely payment of all such bills, shall
effect timely payment of all such charges irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow
Payments, and shall make Servicing Advances to effect such payments. With
regard
to any Mortgage Loans for which the Mortgagor is not required to escrow
Escrow
Payments with the Servicer, the Servicer shall use reasonable efforts consistent
with Accepted Servicing Practices to determine that any such payments are
made
by the Mortgagor at the time they first became due and shall insure that
the
Mortgaged Property is not lost to a tax lien as a result of nonpayment
and that
such Mortgage is not left uninsured and shall make Servicing Advances to
effect
any such delinquent payments to avoid the lapse of insurance coverage on
the
Mortgaged Property or to avoid the imposition of a tax lien.
27
Section
3.13 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan, with a generally
acceptable insurer, fire and hazard insurance of extended coverage on the
related Mortgaged Property, in an amount which is at least equal to the
greater
of (i) the then outstanding principal balance of the Mortgage Loan and
(ii) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer. It is understood
and agreed that no earthquake or other additional insurance is required
to be
maintained by the Servicer in connection with any Mortgage Loan or Mortgaged
Property, other than pursuant to applicable laws and regulations that require
the Servicer to cause such additional insurance to be maintained.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been
made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a
generally
acceptable insurance carrier in an amount representing coverage equal to
the
lesser of (i) the minimum amount required, under the terms of coverage,
to
compensate for any damage or loss on a replacement cost basis (or the unpaid
balance of the mortgage if replacement cost coverage is not available for
the
type of building insured) and (ii) the maximum amount of insurance which
is
available under the Flood Disaster Protection Act of 1973, as amended.
If at any
time during the term of the Mortgage Loan, the Servicer determines in accordance
with applicable law and pursuant to the Xxxxxx Xxx Guides that a Mortgaged
Property is located in a special flood hazard area and is not covered by
flood
insurance or is covered in an amount less than the amount required by the
Flood
Disaster Protection Act of 1973, as amended, the Servicer shall notify
the
related Mortgagor that the Mortgagor must obtain such flood insurance coverage,
and if said Mortgagor fails to obtain the required flood insurance coverage
within forty-five (45) days after such notification, the Servicer shall
force
place the required flood insurance on the Mortgagor’s behalf.
Section
3.14 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy (a “Mortgage
Impairment Insurance Policy”) insuring against losses arising from fire and
hazards covered under extended coverage on all of the Mortgage Loans, then,
to
the extent such Mortgage Impairment Insurance Policy provides coverage
in an
amount equal to the amount required pursuant to Section 3.13 and otherwise
complies with all other requirements of Section 3.13, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 3.13.
Any
amounts collected by the Servicer under any such Mortgage Impairment Insurance
Policy relating to a Mortgage Loan shall be deposited in the Custodial
Account
or Escrow Account subject to withdrawal pursuant to Section 3.04 or 3.06.
Such
Mortgage Impairment Insurance Policy may contain a deductible clause, in
which
case, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 3.13, and there shall
have
been a loss which would have been covered by such policy, the Servicer
shall
deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under such blanket policy because of such deductible
clause,
such amount to be deposited from the Servicer’s funds, without reimbursement
therefor.
28
Section
3.15 Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Trustee or the Master Servicer
prior to releasing any Insurance Proceeds or Condemnation Proceeds to the
Mortgagor to be applied to the restoration or repair of the Mortgaged Property
if such release is in accordance with Accepted Servicing Practices. At
a
minimum, with respect to claims greater than $10,000, the Servicer shall
comply
with the following conditions in connection with any such release of Insurance
Proceeds or Condemnation Proceeds:
(i)
the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii)
the
Servicer shall take all steps necessary to preserve the priority of the
lien of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii)
the
Servicer shall verify that the Mortgage Loan is not 60 or more days Delinquent;
and
(iv)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow Account.
With
respect to claims of $10,000 or less, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(v)
the
related Mortgagor shall provide an affidavit verifying the completion of
repairs
and issuance of any required approvals with respect thereto;
(vi)
the
Servicer shall verify the total amount of the claim with the applicable
insurance company; and
(vii)
the
Servicer shall verify that the Mortgage Loan is not 60 or more days delinquent.
If the account is 60 or more days delinquent, pending repairs or restoration,
the Servicer shall place the Insurance Proceeds or Condemnation Proceeds
in the
Escrow Account.
29
Section
3.16 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken
in the
name of the Trustee or its nominee (or MERS, as applicable, provided however
that if the Servicer deems it to be in the best interest of the Trustee,
the
Servicer may take title in the name of a person or persons other than MERS),
or
in the event the Trustee is not authorized or permitted to hold title to
real
property in the state where the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such
Person
or Persons as shall be consistent with an Opinion of Counsel obtained by
the
Servicer (with a copy delivered to the Trustee) from any attorney duly
licensed
to practice law in the state where the REO Property is located. The Person
or
Persons holding such title other than the Trustee shall acknowledge in
writing
that such title is being held as nominee for the Trustee.
The
Servicer shall manage, conserve, protect and operate each REO Property
for the
Trustee solely for the purpose of its prompt disposition and sale. The
Servicer,
either itself or through an agent selected by the Servicer, shall manage,
conserve, protect and operate the REO Property in the same manner that
it
manages, conserves, protects and operates other foreclosed property for
its own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer
deems to
be in the best interest of the Trustee. If the Servicer determines that
it is in
the best interest of the Trustee to not proceed with foreclosure or accept
a
deed in lieu of foreclosure, the Servicer shall have the right to do so,
whereupon the related Mortgage Loan shall be deemed to be finally liquidated
and
the Servicer shall have the right to release the lien of the Mortgage on
the
related Mortgage Property and the Servicer shall be entitled to reimbursement
for all outstanding unreimbursed Servicing Advances and Monthly Advances
from
the Custodial Account in accordance with Section 3.04(viii).
The
Servicer may permit an obligor to pay off a non-performing Mortgage Loan
at less
than its unpaid principal balance or charge off all or a portion of such
non-performing Mortgage Loan if such discounted payoff or charge off is
in
accordance with Accepted Servicing Practices and the Servicer believes
that such
discounted payoff or charge off is in the best interest of the Trust Fund;
provided
that
in
the case of any proposed discounted payoff or proposed charge off, the
Servicer
shall notify the Master Servicer and the NIMS Insurer, by telecopy and
telephone, of the proposed discounted payoff or proposed charge off of
any
Mortgage Loan. The Master Servicer and the NIMS Insurer shall each be deemed
to
have approved the discounted payoff or charge off of any Mortgage Loan
unless
either of the Master Servicer or the NIMS Insurer notifies the Servicer
in
writing, within five (5) Business Days after its receipt of the related
notice,
that it disapproves of the discounted payoff or charge off, in which case
the
Servicer shall not proceed with such discounted payoff or charge
off.
Notwithstanding
anything to the contrary contained in this Section 3.16, in connection
with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the
Servicer has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Master
Servicer or NIMS Insurer otherwise requests, an environmental inspection
or
review of such Mortgaged Property to be conducted by a qualified inspector
shall
be arranged by the Servicer. Upon completion of the inspection, the Servicer
shall provide the Master Servicer and the NIMS Insurer with a written report
of
such environmental inspection. In the event that the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous
or
toxic substances or wastes, the Servicer shall not proceed with foreclosure
or
acceptance of a deed in lieu of foreclosure. In the event that the environmental
inspection report is inconclusive as to the whether or not the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not, without the prior approval of the Master Servicer and
the
NIMS Insurer, proceed with foreclosure or acceptance of a deed in lieu
of
foreclosure. In such instance, the Master Servicer and the NIMS Insurer
shall be
deemed to have approved such foreclosure or acceptance of a deed in lieu
of
foreclosure unless either party notifies the Servicer in writing, within
two (2)
Business Days after its receipt of written notice of the proposed foreclosure
or
deed in lieu of foreclosure from the Servicer, that it disapproves of the
related foreclosure or acceptance of a deed in lieu of foreclosure. The
Servicer
shall be reimbursed for all Servicing Advances made pursuant to this paragraph
with respect to the related Mortgaged Property from the Custodial
Account.
30
Subject
to the approval of the Master Servicer and the NIMS Insurer as described
in this
paragraph, the disposition of REO Property shall be carried out by the
Servicer
at such price, and upon such terms and conditions, as the Servicer deems
to be
in the best interests of the Trust Fund. Prior to acceptance by the Servicer
of
an offer to sell any REO Property, the Servicer shall notify the Master
Servicer
and the NIMS Insurer of such offer in writing which notification shall
set forth
all material terms of said offer (each a “Notice of Sale”). The Master Servicer
and the NIMS Insurer shall be deemed to have approved the sale of any REO
Property unless either notifies the Servicer in writing, within 2 Business
Days
after its receipt of the related Notice of Sale, that it disapproves of
the
related sale, in which case the Servicer shall not proceed with such sale.
With
respect to any REO Property, upon a REO Disposition, the Servicer shall
be
entitled to retain from REO Disposition Proceeds a disposition fee equal
to
$1,500.
In
the
event that the Trust Fund acquires any REO Property in connection with
a default
or imminent default on a Mortgage Loan, the Servicer shall dispose of such
REO
Property not later than the end of the third taxable year after the year
of its
acquisition by the Trust Fund unless the Servicer has applied for and received
a
grant of extension from the Internal Revenue Service (and provide a copy
of the
same to the NIMS Insurer) to the effect that, under the REMIC Provisions
and any
relevant proposed legislation and under applicable state law, the applicable
Trust REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the imposition of a
federal
or state tax upon such REMIC. If the Servicer has received such an extension
(and provided a copy of the same to the NIMS Insurer), then the Servicer
shall
continue to attempt to sell the REO Property for its fair market value
for such
period longer than three years as such extension permits (the “Extended
Period”). If the Servicer has not received such an extension and the Servicer
is
unable to sell the REO Property within the period ending 3 months before
the end
of such third taxable year after its acquisition by the Trust Fund or if
the
Servicer has received such an extension, and the Servicer is unable to
sell the
REO Property within the period ending three months before the close of
the
Extended Period, the Servicer shall, before the end of the three-year period
or
the Extended Period, as applicable, (i) purchase such REO Property at a
price
equal to the REO Property’s fair market value, as acceptable to the NIMS Insurer
or (ii) auction the REO Property to the highest bidder (which may be the
Servicer) in an auction reasonably designed to produce a fair price prior
to the
expiration of the three-year period or the Extended Period, as the case
may be.
The Trustee shall sign any document or take any other action reasonably
requested by the Servicer which would enable the Servicer, on behalf of
the
Trust Fund, to request such grant of extension.
31
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the
Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise
used by
or on behalf of the Trust Fund in such a manner or pursuant to any terms
that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any
Trust
REMIC to the imposition of any federal income taxes on the income earned
from
such REO Property, including any taxes imposed by reason of Sections 860F
or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund and the NIMS Insurer with respect to the imposition
of
any such taxes.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability
insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required
above.
The
Servicer shall withdraw from the Custodial Account funds necessary for
the
proper operation, management and maintenance of the REO Property, including
the
cost of maintaining any hazard insurance pursuant to the Xxxxxx Xxx Guides.
The
Servicer shall make monthly distributions on each Remittance Date to the
Master
Servicer of the net cash flow from the REO Property (which shall equal
the
revenues from such REO Property net of the expenses described in this Section
3.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section
3.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish to the Master Servicer and the NIMS Insurer on or before the Remittance
Date each month a statement with respect to any REO Property covering the
operation of such REO Property for the previous month and the Servicer’s efforts
in connection with the sale of such REO Property and any rental of such
REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as either the Master Servicer
or
the NIMS Insurer shall reasonably request.
Section
3.18 MERS.
(a)
The
Servicer shall use its Best Efforts to cause the Trustee to be identified
as the
owner of each MERS Mortgage Loan on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS.
(b)
The
Servicer shall maintain in good standing its membership in MERS. In addition,
the Servicer shall comply with all rules, policies and procedures of MERS,
including the Rules of Membership, as amended, and the MERS Procedures
Manual,
as amended. If the Servicer fails to maintain its membership in MERS in
good
standing, or otherwise elects to terminate its membership in MERS, the
costs
associated with termination of such membership shall be borne by the Servicer.
32
(c)
With
respect to all MERS Mortgage Loans serviced hereunder, the Servicer shall
promptly notify MERS as to any transfer of beneficial ownership in such
Mortgage
Loans of which the Servicer has notice.
(d)
With
respect to all MERS Mortgage Loans serviced hereunder, the Servicer shall
notify
MERS as to any transfer of servicing pursuant to Section 9.01 within 10
Business
Days of such transfer of servicing. The Servicer shall cooperate with the
Trustee, the Master Servicer and any successor Servicer to the extent necessary
to ensure that such transfer of servicing is appropriately reflected on
the MERS
system.
Section
3.19 Waiver
of Prepayment Charges.
Except
as
provided below, the Servicer or any designee of the Servicer shall not
waive any
Prepayment Charge with respect to any Mortgage Loan. If the Servicer or
its
designee fails to collect a Prepayment Charge at the time of the related
prepayment of any Mortgage Loan subject to such Prepayment Charge, the
Servicer
shall pay to the Trust Fund at such time (by deposit to the Trust Custodial
Account) an amount equal to the amount of the Prepayment Charge not collected;
provided,
however,
the
Servicer shall not have any obligation to pay the amount of any uncollected
Prepayment Charge under this Section 3.19 if the failure to collect such
amount
is the result of inaccurate or incomplete information on the Prepayment
Charge
Schedule provided by LBH and which is included as part of the Mortgage
Loan
Schedule attached hereto as Exhibit A. Notwithstanding the above, the Servicer
or its designee may waive (and shall waive, in the case of (iii) below)
a
Prepayment Charge without paying to the Trust Fund the amount of such Prepayment
Charge only if the related prepayment is not the result of a refinancing
by the
Servicer or its designee and such waiver (i) relates to a defaulted Mortgage
Loan or a reasonably foreseeable default, such waiver is standard and customary
in servicing similar mortgage loans to the Mortgage Loans, and such waiver,
in
the reasonable judgment of the Servicer, would maximize recovery of total
proceeds from the Mortgage Loan, taking into account the amount of such
Prepayment Charge and the related Mortgage Loan, (ii) relates to a prepayment
charge the collection of which, in the reasonable judgment of the Servicer,
would be a violation of applicable laws or (iii) notwithstanding any state
or
federal law to the contrary, any Prepayment Charge in any instance when
a
Mortgage Loan is in foreclosure.
Section
3.20 Safeguarding
Customer Information.
The
Servicer has implemented and will maintain security measures designed to
meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information published in final form on February 1,
2001,
66 Fed. Reg. 8616 and the rules promulgated thereunder, as amended from
time to
time (the “Guidelines”).
The
Servicer shall promptly provide the Master Servicer, the Trustee and the
NIMS
Insurer information reasonably available to it regarding such security
measures
upon the reasonable request of the Master Servicer, the Trustee and the
NIMS
Insurer which information shall include, but not be limited to, any Statement
on
Auditing Standards (SAS) No. 70 report covering the Servicer’s operations, and
any other audit reports, summaries of test results or equivalent measures
taken
by the Servicer with respect to its security measures to the extent reasonably
necessary in order for the Seller to satisfy its obligations under the
Guidelines.
33
ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
Section
4.01 Remittances.
On
each
Remittance Date, no later than 3:00 p.m. New York City time, the Servicer
shall
remit on a scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (i) all amounts deposited in the Custodial
Account
as of the close of business on the last day of the related Due Period (net
of
charges against or withdrawals from the Custodial Account pursuant to Section
3.04), plus
(ii) all
Monthly Advances, if any, which the Servicer is obligated to remit pursuant
to
Section 4.03 (and which the Servicer has not already deposited in the Custodial
Account pursuant to Section 3.03(viii)), plus
(iii)
the amount of any Net Simple Interest Shortfall not offset by Net Simple
Interest Excess for the related Due Period; minus
(iv) any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after
the
applicable Prepayment Period, which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 3.03(vii), and minus
(iv) any
amounts attributable to Monthly Payments collected but due on a Due Date
or Due
Dates subsequent to the first day of the month in which such Remittance
Date
occurs, which amounts shall be remitted on the Remittance Date next succeeding
the Due Date related to such Monthly Payment.
With
respect to any remittance received by the Master Servicer after the Business
Day
on which such payment was due, the Servicer shall pay to the Master Servicer
interest on any such late payment at an annual rate equal to the Prime
Rate,
adjusted as of the date of each change, plus two percentage points, but
in no
event greater than the maximum amount permitted by applicable law. Such
interest
shall be deposited in the Custodial Account by the Servicer on the date
such
late payment is made and shall cover the period commencing with the day
following such Business Day and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along
with the
distribution payable on the next succeeding Remittance Date. The payment
by the
Servicer of any such interest shall not be deemed an extension of time
for
payment or a waiver of any Event of Default by the Trustee or the Master
Servicer.
All
remittances required to be made to the Master Servicer shall be made to
the
following wire account or to such other account as may be specified by
the
Master Servicer from time to time:
Bank
of
New York
34
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-17H
Section
4.02 Statements
to Master Servicer.
(a)
Not
later
than the tenth calendar day of each month (or if such calendar day is not
a
Business Day, the immediately preceding Business Day), the Servicer shall
furnish to the Master Servicer and the NIMS Insurer (i) a monthly remittance
advice in the format set forth in Exhibit D-1 hereto (or in such other
format
mutually agreed between the Servicer and the Master Servicer) and a monthly
defaulted loan report in the format set forth in Exhibit D-2 hereto (or
in such
other format mutually agreed between the Servicer and the Master Servicer)
relating to the period ending on the last day of the preceding calendar
month
and (ii) all such information required pursuant to clause (i) above on
a
magnetic tape or other similar media reasonably acceptable to the Master
Servicer and the Servicer, whose agreement shall not be unreasonably withheld.
The format of this monthly reporting may be amended from time to time to
the
extent necessary to comply with applicable law.
Such
monthly remittance advice shall also be accompanied with a supplemental
report
provided to the Master Servicer upon 30 days written notice from the Master
Servicer, the NIMS Insurer and the Seller which includes on an aggregate
basis
for the previous Due Period (i) the amount of claims filed, (ii) the amount
of
any claim payments made, (iii) the amount of claims denied or curtailed
and (iv)
policies cancelled with respect to those Mortgage Loans covered by any
PMI
Policy purchased by the Seller on behalf of the Trust Fund;
provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the
Servicer
shall not be required to submit any supplemental reports including the
foregoing
data with respect to any such PMI Policy until a reporting date that is
at least
15 days after the Servicer has received sufficient loan level information
from
the Seller to appropriately code its servicing system in accordance with
requirements.
Not
later
than the seventeenth day of each month, the Servicer shall furnish to the
Master
Servicer and the NIMS Insurer (a) a monthly payoff remittance advice regarding
any Principal Prepayments in full applied to the related Mortgage Loan
on or
after the seventeenth day of the month preceding the month of such reporting
date, but on or before the sixteenth day of the month of such reporting
date,
containing such information and in such format as is mutually acceptable
to the
Master Servicer and the Servicer, and in any event containing sufficient
information to permit the Master Servicer to properly report Principal
Prepayment in full information to the Trustee under the Trust Agreement
and (b)
all such information required pursuant to clause (a) above in electronic
format,
on magnetic tape or other similar media reasonably acceptable to the Master
Servicer.
(b)
In
addition, no more than 60 days after the end of each calendar year, commencing
December 31, 2007, the Servicer shall provide (as such information becomes
reasonably available to the Servicer) to the Master Servicer, and the NIMS
Insurer such information concerning the Mortgage Loans and annual remittances
to
the Master Servicer therefrom as is necessary for the Trustee to prepare
the
Trust Fund’s federal income tax return and for any investor in the Certificates
to prepare any required tax return. Such obligation of the Servicer shall
be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Servicer to the Master Servicer, the
Trustee and the NIMS Insurer pursuant to any requirements of the Code as
from
time to time are in force. The Servicer shall also provide to the Trustee
such
information as may be requested by it and required for the completion of
any tax
reporting responsibility of the Trustee within such reasonable time frame
as
shall enable the Trustee to timely file each Schedule Q (or other applicable
tax
report or return) required to be filed by it.
35
(c)
The
Servicer shall promptly notify the Trustee, the NIMS Insurer, the Master
Servicer and the Depositor (i) of any legal proceedings pending against
the
Servicer of the type described in Item 1117 (§
229.1117) of
Regulation AB and (ii) if the Servicer shall become (but only to the extent
not
previously disclosed to the Trustee, the NIMS Insurer, the Master Servicer
and
the Depositor) at any time an affiliate of any of the parties listed on
Exhibit
I to this Agreement.
If
so
requested by the Trustee, the Master Servicer or the Depositor on any date
following the date on which information was first provided to the Trustee,
the
NIMS Insurer and the Depositor pursuant to the preceding sentence, the
Servicer
shall within ten (10) Business Days following such request, confirm in
writing
the accuracy of the representations and warranties set forth in Section
6.01(k)
or, if such a representation and warranty is not accurate as of the date
of such
request, provide reasonable adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
The
Servicer shall provide to the
Trustee, the NIMS Insurer, the Master Servicer and the Depositor
prompt
notice of the occurrence of any of the following: any event of default
under the
terms of this Agreement, any merger, consolidation or sale of substantially
all
of the assets of the Servicer, the Servicer’s engagement of any Subservicer,
Subcontractor or vendor to perform or assist in the performance of any
of the
Servicer’s obligations under this Agreement, any material litigation involving
the Servicer, and any affiliation or other significant relationship between
the
Servicer and other transaction parties.
(d)
Not
later
than the tenth calendar day of each month (or if such calendar day is not
a
Business Day, the immediately preceding Business Day), the Servicer shall
provide to the Master Servicer notice of the occurrence of any material
modifications, extensions or waivers of terms, fees, penalties or payments
relating to the Mortgage Loans during the related Due Period or that have
cumulatively become material over time (Item 1121(a)(11) of Regulation
AB) along
with all information, data, and materials related thereto as may be required
to
be included in the related Distribution Report on Form 10-D.
Section
4.03 Monthly
Advances by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution, or both, an amount equal to all Monthly Payments (in
the
case of Simple Interest Mortgage Loans, solely the portion of the Monthly
Payment attributable to interest) which were due on the Mortgage Loans
during
the applicable Due Period and which were Delinquent at the close of business
on
the immediately preceding Determination Date. Any amounts held for future
distribution and so used shall be replaced by the Servicer by deposit in
the
Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than remittances
to the
Master Servicer required to be made on such Remittance Date. The Servicer
shall
keep appropriate records of such amounts and will provide such records
to the
Master Servicer and the NIMS Insurer upon request. No provision in this
Agreement shall be construed as limiting the Servicer’s right to (i) pass
through late collections on the related Mortgage Loans in lieu of making
Monthly
Advances or (ii) reimburse itself for such Monthly Advances from late
collections on the related Mortgage Loans.
36
The
Servicer’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date for the distribution of all Liquidation Proceeds and other payments
or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect
to the related Mortgage Loan unless the Servicer deems such Monthly Advance
to
be non-recoverable, as evidenced by an Officer’s Certificate of the Servicer
delivered to the Master Servicer.
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
Section
5.01 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement,
the
Servicer shall retain (i) the relevant Servicing Fee for each Mortgage
Loan
remaining subject to this Agreement during any month and (ii) Ancillary
Income.
In addition, if at any time the Servicer is the Retained Interest Holder
with
respect to any Mortgage Loans, then the Servicer, as the Retained Interest
Holder, shall retain an amount equal to the Retained Interest relating
to such
Mortgage Loans; provided
that (i)
the Trustee and the Master Servicer shall have no obligation to make payment
of
the Retained Interest to the Servicer and (ii) the Servicer’s right to retain
the Retained Interest is limited to (and the Retained Interest may only
be
retained from) the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds) of the Monthly Payments collected by
the
Servicer with respect to those Mortgage Loans for which payment is in fact
made
of the entire amount of the Monthly Payment. The Servicing Fee shall be
payable
monthly. The Servicing Fees shall be payable only at the time of and with
respect to those Mortgage Loans for which payment is in fact made of the
entire
amount of the Monthly Payment or as otherwise provided in Section 3.04.
The
obligation of the Trust Fund to pay the Servicing Fees is limited as provided
in
Section 3.04. The aggregate of the Servicing Fees payable to the Servicer
for
any month with respect to the Mortgage Loans shall be reduced by any Prepayment
Interest Shortfall Amount with respect to such month. Any Prepayment Interest
Excess Amount shall be retained by, or paid to, the Servicer as a part
of the
Servicing Fee.
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
37
Section
5.02 Report
on Attestation of Compliance with Applicable Servicing Criteria.
The
Servicer shall, on or before March 15th
of each
calendar year, commencing in 2008, at its own expense, cause a firm of
independent public accountants (who may also render other services to Servicer),
which is a member of the American Institute of Certified Public Accountants,
to
furnish to the Seller, the NIMS Insurer, the Trustee, the Depositor and
the
Master Servicer (i) year-end audited (if available) financial statements
of the
Servicer and (ii) a report to the effect that such firm that attests to,
and
reports on, the assessment made by such asserting party pursuant to Section
5.04
below, which report shall be made in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight
Board.
In addition, the Servicer shall, on or before March 15th
of each
calendar year, commencing in 2008, at its own expense, furnish to the Seller,
the NIMS Insurer, the Trustee, the Depositor and the Master Servicer a
report
meeting the requirements of clause (ii) above regarding the attestation
of any
(x) Subservicer or (y) Subcontractor which is “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB and
for
which the Servicer does not elect to take responsibility for assessing
compliance with the servicing criteria in accordance with Regulation AB
Telephone Interpretation 17.06.
Section
5.03 Annual
Officer’s Certificate.
(a)
No
later
than March 15th
of each
year, beginning with March 15, 2008, the Servicer, at its own expense,
shall
deliver to the Seller, the NIMS Insurer, the Trustee, the Depositor and
the
Master Servicer with respect to the period ending on the immediately preceding
December 31, a Servicing Officer’s certificate in the form of Exhibit J hereto,
stating, as to each signer thereof, that (1) a review of the activities
of the
Servicer during such preceding calendar year or portion thereof and of
its
performance under this Agreement for such period has been made under such
Servicing Officer’s supervision and (2) to the best of such officers’ knowledge,
based on such review, the Servicer has fulfilled all of its obligations
under
this Agreement in all material respects throughout such year (or applicable
portion thereof), or, if there has been a failure to fulfill any such obligation
in any material respect, specifically identifying each such failure known
to
such Servicing Officer and the nature and status thereof, including the
steps
being taken by the Servicer to remedy such default.
(b)
For
so
long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002, as amended,
("Xxxxxxxx-Xxxxx") is required to be given on behalf of the Trust Fund,
a
Servicing Officer shall, in no event later than March 15th, (or if not
a
Business Day, the immediately preceding Business Day) of each calendar
year,
beginning in 2008, execute and deliver an Officer's Certificate to the
Master
Servicer, the Trustee and the Depositor for the benefit of the Trust Fund,
the
Master Servicer and the Depositor and their officers, directors and affiliates,
in the form of Exhibit F hereto.
(c)
The
Servicer shall indemnify and hold harmless the Seller, the NIMS Insurer,
the
Trustee, the Master Servicer, the Depositor and their respective officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of
its
obligations under this Section 5.03 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Master
Servicer, the Trustee and/or the Depositor, then the Servicer agrees that
it
shall contribute to the amount paid or payable by the Master Servicer,
the
Trustee and/or the Depositor as a result of the losses, claims, damages
or
liabilities of the Master Servicer, the Trustee and/or the Depositor in
such
proportion as is appropriate to reflect the relative fault of the Master
Servicer, the Trustee and/or the Depositor on the one hand and the Servicer
on
the other in connection with a breach of the Servicer’s obligations under this
Section 5.03 or the Servicer’s negligence, bad faith or willful misconduct in
connection therewith.
38
Section
5.04 Report
on Assessment of Compliance with Applicable Servicing Criteria.
On
or
before March 15th
of each
year, commencing in 2008, the Servicer shall deliver to the Seller, the
Trustee,
the NIMS Insurer, the Master Servicer and the Depositor a report regarding
its
assessment of compliance with the servicing criteria identified in Exhibit
H
attached hereto, as of and for the immediately preceding calendar year.
Such
report shall address all of the servicing criteria specified in Exhibit
H. Each
such report shall include (a) a statement of the party’s responsibility for
assessing compliance with the servicing criteria applicable to such party,
(b) a
statement that such party used the criteria identified in Item 1122(d)
of
Regulation AB (§ 229.1122(d)) to assess compliance with the applicable servicing
criteria, (c) disclosure of any material instance of noncompliance identified
by
such party, and (d) a statement that a registered public accounting firm
has
issued an attestation report on such party’s assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Servicer
as provided in Section 5.02.
Section
5.05 Transfers
of Mortgaged Property.
The
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
person
to whom the Mortgaged Property has been or is about to be sold whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer shall, to the
extent
it has knowledge of such conveyance, exercise its rights to accelerate
the
maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto, provided, however, that the Servicer shall not exercise such rights
if
prohibited by law from doing so or if the exercise of such rights would
impair
or threaten to impair any recovery under the related PMI Policy or LPMI
Policy,
if any.
If
the
Servicer reasonably believes it is unable under applicable law to enforce
such
“due-on-sale” clause, the Servicer shall make all commercially reasonable best
efforts to enter into (i) an assumption and modification agreement with
the
person to whom such property has been conveyed, pursuant to which such
person
becomes liable under the Mortgage Note and the original Mortgagor remains
liable
thereon or (ii) in the event the Servicer is unable under applicable law
to
require that the original Mortgagor remain liable under the Mortgage Note
and
the Servicer has the prior consent of the primary mortgage guaranty insurer,
a
substitution of liability agreement with the owner of the Mortgaged Property
pursuant to which the original Mortgagor is released from liability and
the
owner of the Mortgaged Property is substituted as Mortgagor and becomes
liable
under the Mortgage Note; provided
that
no
such substitutions should be permitted unless such person satisfies the
underwriting criteria of the Servicer and has a credit risk rating at least
equal to that of the original Mortgagor. The Mortgage Loan, as assumed,
shall
conform in all respects to the requirements, representations and warranties
of
this Agreement. The Servicer shall notify the Master Servicer that any
such
assumption or substitution agreement has been contemplated by forwarding
to the
Master Servicer a copy of such assumption or substitution agreement (indicating
the Mortgage File to which it relates). The Servicer shall forward an original
copy of such agreement to the related Custodian to be held by such Custodian
with the other documents related to such Mortgage Loan. The Servicer shall
be
responsible for recording any such assumption or substitution agreements.
In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain
as in
effect immediately prior to the assumption or substitution, the Mortgage
Interest Rate, the stated maturity or the outstanding principal amount
of such
Mortgage Loan shall not be changed nor shall any required monthly payments
of
principal or interest be deferred or forgiven. Any assumption fee collected
by
the Servicer for entering into an assumption agreement shall be retained
by the
Servicer as additional servicing compensation. In connection with any such
assumption, none of the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan or the outstanding principal amount
of the
Mortgage Loan shall be changed.
39
ARTICLE
VI.
REPRESENTATIONS,
WARRANTIES
AND
AGREEMENTS
Section
6.01 Representations,
Warranties and Agreements of the Servicer.
The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the
Seller,
the Master Servicer, the Depositor and the Trustee as of the Closing
Date:
(a)
Due
Organization and Authority.
The
Servicer is a limited liability company duly organized, validly existing
and in
good standing under the jurisdiction of its formation and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property
is
located if the laws of such state require licensing or qualification in
order to
conduct business of the type conducted by the Servicer, and in any event
the
Servicer is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the terms of this Agreement;
the
Servicer has the full power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by the Servicer and the consummation of the
transactions contemplated hereby have been duly and validly authorized;
this
Agreement evidences the valid, binding and enforceable obligation of the
Servicer and all requisite action has been taken by the Servicer to make
this
Agreement valid and binding upon the Servicer in accordance with its
terms;
(b)
Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Servicer;
40
(c)
No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the servicing
responsibilities by the Servicer or the transactions contemplated hereby,
nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s organizational documents or any legal
restriction or any agreement or instrument to which the Servicer is now
a party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is
subject, or impair the ability of the Servicer to service the Mortgage
Loans, or
impair the value of the Mortgage Loans;
(d)
Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(e)
No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending (or, in the case
of
government authorities, known to be contemplated) or threatened against
the
Servicer or any Subservicer which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer or
any
Subservicer, or in any material impairment of the right or ability of the
Servicer or any Subservicer to carry on its business substantially as now
conducted, or in any material liability on the part of the Servicer or
any
Subservicer, or which would draw into question the validity of this Agreement
or
of any action taken or to be taken in connection with the obligations of
the
Servicer contemplated herein, or which would be likely to impair materially
the
ability of the Servicer to perform under the terms of this
Agreement;
(f)
No
Consent Required.
No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement;
(g)
Ability
to Service.
The
Servicer is an approved seller/servicer of conventional residential mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans
of the
same type as the Mortgage Loans. The Servicer is in good standing to service
mortgage loans for either Xxxxxx Mae or Xxxxxxx Mac. The Servicer is a
member in
good standing of the MERS system;
(h)
No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or
to be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not misleading;
(i)
No
Commissions to Third Parties.
The
Servicer has not dealt with any broker or agent or anyone else who might
be
entitled to a fee or commission in connection with this transaction other
than
the Seller; and
(j)
Fair
Credit Reporting Act.
The
Servicer for each mortgage loan has fully furnished, in accordance with
the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company (three of
the
credit repositories), on a monthly basis.
41
(k)
Additional
Representations and Warranties of the Servicer.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor
and
the Trustee prior to the Closing Date: (i)
the Servicer is not aware and has not received notice that any default,
early
amortization or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Servicer; (ii)
the
Servicer has not been terminated as servicer in a residential mortgage
loan
securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as servicer
has been disclosed or reported by the Servicer; (iv) no material
changes to the Servicer’s policies or procedures with respect to the servicing
function it will perform under this Agreement for mortgage loans of a type
similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the Closing
Date; (v) there are no aspects of the Servicer’s financial condition that could
have a material adverse effect on the performance by the
Servicer of its servicing obligations under this Agreement
and (vi) there are no affiliations, relationships or transactions relating
to
the Servicer or any Subservicer with any party listed on Exhibit I hereto.
Section
6.02 Remedies
for Breach of Representations and Warranties of the Servicer.
It
is
understood and agreed that the representations and warranties set forth
in
Section 6.01 shall survive the engagement of the Servicer to perform the
servicing responsibilities as of the Closing Date or Servicing Transfer
Date, as
applicable, hereunder and the delivery of the Servicing Files to the Servicer
and shall inure to the benefit of the Seller, the Master Servicer, the
Depositor
and the Trustee. Upon discovery by either the Servicer, the Master Servicer,
the
Seller, the Depositor, the Trustee or the NIMS Insurer of a breach of any
of the
foregoing representations and warranties which materially and adversely
affects
the ability of the Servicer to perform its duties and obligations under
this
Agreement or otherwise materially and adversely affects the value of the
Mortgage Loans, the Mortgaged Properties or the priority of the security
interest on such Mortgaged Property or the interest of the Seller or the
Trustee, the party discovering such breach shall give prompt written notice
to
the other.
Within
60
days of (or, in the case of any breach of a representation or warranty
set forth
in Section 6.01(k), 10 days) the earlier of either discovery by or notice
to the
Servicer of any breach of a representation or warranty set forth in Section
6.01
which materially and adversely affects the ability of the Servicer to perform
its duties and obligations under this Agreement or otherwise materially
and
adversely affects the value of the Mortgage Loans, the Mortgaged Property
or the
priority of the security interest on such Mortgaged Property, the Servicer
shall
use its Best Efforts promptly to cure such breach in all material respects
and,
if such breach cannot be cured, the Servicer shall, at the Trustee’s, the Master
Servicer’s or the NIM Insurer’s option, assign the Servicer’s rights and
obligations under this Agreement (or respecting the affected Mortgage Loans)
to
a successor Servicer. Such assignment shall be made in accordance with
Sections
9.01 and 9.02.
42
In
addition, the Servicer shall indemnify the Seller, the Master Servicer,
the
Trustee and the NIMS Insurer (and each of their respective directors, officers,
employees and agents) and the Trust Fund, and hold each of them harmless
against
any Costs resulting from any claim, demand, defense or assertion based
on or
grounded upon, or resulting from, a breach of the Servicer’s representations and
warranties contained in this Agreement. It is understood and agreed that
the
remedies set forth in this Section 6.02 constitute the sole remedies of
the
Seller, the Master Servicer, the Trustee and the NIMS Insurer respecting
a
breach of the foregoing representations and warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach
of any
representations and warranties made in Section 6.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Seller,
the
Master Servicer, the Depositor, the Trustee or the NIMS Insurer to the
Servicer,
(ii) failure by the Servicer to cure such breach within the applicable
cure
period, and (iii) demand upon the Servicer by the Seller, the Trustee,
the
Master Servicer, the Depositor or the NIMS Insurer for compliance with
this
Agreement.
Section
6.03 Additional
Indemnification by the Servicer; Third Party Claims.
(a)
The
Servicer shall indemnify the Seller, the Depositor, the Trustee, the Master
Servicer, the NIMS Insurer, the Trust Fund and each of their respective
directors, officers, employees and agents and the Trust Fund and shall
hold each
of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and
any other
costs, fees and expenses that any of them may sustain arising out of or
based
upon:
(A) any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, including any report under Sections
5.02,
5.03 or 5.04 or any failure by the Servicer to identify pursuant to Section
7.04(c) any Subcontractor that is a Participating Entity;
(B) the
failure of the Servicer to perform its duties and service the Mortgage
Loans in
material compliance with the terms of this Agreement; or
(C) the
failure of the Servicer to cause any event to occur or not to occur which
would
have occurred or would not have occurred, as applicable, if the Servicer
were
applying Accepted Servicing Practices under this Agreement.
In
the
case of any failure of performance described in clause (a)(A) of this Section
6.03, the Servicer shall promptly reimburse the Trustee, the Master Servicer
or
the Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to the transaction relating to this Agreement, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to this transaction, for all costs reasonably incurred
by each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the Servicer,
any Subservicer or any Subcontractor.
43
The
Servicer shall immediately notify the Seller, the Depositor, the Master
Servicer, the Trustee, the NIMS Insurer, the Trust Fund or any other relevant
party if a claim is made by a third party with respect to this Agreement
or the
Mortgage Loans, assume (with the prior written consent of the indemnified
party
in the event of an indemnified claim) the defense of any such claim and
pay all
expenses in connection therewith, including counsel fees, promptly pay,
discharge and satisfy any judgment or decree which may be entered against
it or
any other party in respect of such claim and follow any written instructions
received from such indemnified party in connection with such claim. Subject
to
the Servicer’s indemnification pursuant to Section 6.02, or the failure of the
Servicer to service and administer the Mortgage Loans in material compliance
with the terms of this Agreement, the Trust Fund shall indemnify the Servicer
and hold the Servicer harmless against any and all Costs that the Servicer
may
sustain in connection with any legal action relating to this Agreement,
the
Certificates or the origination or Servicing of the Mortgage Loans by any
prior
owner or servicer, other than any Costs incurred by reason of the Servicer’s
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of its reckless disregard of obligations and duties
hereunder.
Section
6.04 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a
REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the Holder of the related Residual Certificate,
the
Master Servicer, the Trustee and the Trust Fund and the NIMS Insurer (and
each
of their respective directors, officers, employees and agents) against
any and
all losses, claims, damages, liabilities or expenses (“Losses”) resulting from
such negligence; provided,
however,
that the
Servicer shall not be liable for any such Losses attributable to the action
or
inaction of the Trustee, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the
Servicer has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate, the Trustee,
the
Master Servicer and the Trust Fund or the NIMS Insurer now or hereafter
existing
at law or in equity or otherwise. Notwithstanding the foregoing, however,
in no
event shall the Servicer have any liability (1) for any action or omission
that
is taken in accordance with and in compliance with the express terms of,
or
which is expressly permitted by the terms of, this Agreement, (2) for any
Losses
other than arising out of a negligent performance by the Servicer of its
duties
and obligations set forth herein, and (3) for any special or consequential
damages to Certificateholders (in addition to payment of principal and
interest
on the Certificates).
Section
6.05 Reporting
Requirements of the Commission and Indemnification.
Notwithstanding
any other provision of this Agreement, the Servicer acknowledges and agrees
that
the purpose of Sections 4.02(c) and (d), 5.02, 5.03, 5.04, 6.01(k), 6.03
and
7.04 of this Agreement is to facilitate compliance by the Trustee, the
Master
Servicer and the Depositor with the provisions of Regulation AB. Therefore,
the
Servicer agrees that (a) the obligations of the Servicer hereunder shall
be
interpreted in such a manner as to accomplish that purpose, (b) such obligations
may change over time due to interpretive advice or guidance of the Commission,
convention or consensus among active participants in the asset-backed securities
markets, advice of counsel, or otherwise in respect of the requirements
of
Regulation AB, (c) the Servicer shall agree to enter into such amendments
to
this Agreement as may be necessary, in the judgment of the Depositor, the
Master
Servicer and their respective counsel, to comply with such interpretive
advice
or guidance, convention, consensus, advice of counsel, or otherwise, (d)
the
Servicer shall otherwise comply with requests made by the Trustee, the
Master
Servicer or the Depositor for delivery of additional or different information
as
such parties may determine in good faith is necessary to comply with the
provisions of Regulation AB and (e) the
Servicer shall (i) agree to such modifications and enter into such amendments
to
this Agreement as may be necessary, in the judgment of the Depositor, the
Master
Servicer and their respective counsel, to comply with any such clarification,
interpretive guidance, convention or consensus and (ii) promptly
upon request provide to the Depositor for inclusion in any periodic report
required to be filed under the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”), such items of information regarding this Agreement and matters
related to the Servicer, (collectively, the “Servicer Information”),
provided
that
such
information shall be required to be provided by the Servicer only to the
extent
that such shall be determined by the Depositor in its sole discretion and
its
counsel to be necessary or advisable to comply with any Commission and
industry
guidance and convention. For purposes of clarification, any modifications
or
amendments of the obligations of the Servicer under this agreement made
pursuant
to this Section 6.05 shall be made in writing and upon mutual agreement
with the
Servicer (provided that such agreement will not be unreasonably withheld)
and in
accordance with Section 9.12 of this Agreement.
44
The
Servicer hereby agrees to indemnify and hold harmless the Depositor, the
Trustee, the Master Servicer, their respective officers and directors and
each
person, if any, who controls the Depositor or Master Servicer within the
meaning
of Section 15 of the Securities Act of 1933, as amended (the “Act”), or Section
20 of the Exchange Act, from and against any and all losses, claims, expenses,
damages or liabilities to which the Depositor, the Trustee, the Master
Servicer,
their respective officers or directors and any such controlling person
may
become subject under the Act or otherwise, as and when such losses, claims,
expenses, damages or liabilities are incurred, insofar as such losses,
claims,
expenses, damages or liabilities (or actions in respect thereof) arise
out of or
are based upon any untrue statement or alleged untrue statement of any
material
fact contained in the Servicer Information or arise out of, or are based
upon,
the omission or alleged omission to state therein any material fact required
to
be stated therein or necessary to make the statements therein, in light
of the
circumstances under which they were made, not misleading, and will reimburse
the
Depositor, the Trustee, the Master Servicer, their respective officers
and
directors and any such controlling person for any legal or other expenses
reasonably incurred by it or any of them in connection with investigating
or
defending any such loss, claim, expense, damage, liability or action, as
and
when incurred; provided,
however,
that
the Servicer shall be liable only insofar as such untrue statement or alleged
untrue statement or omission or alleged omission relates solely to the
information in the Servicer Information furnished to the Depositor, the
Trustee
or the Master Servicer by or on behalf of the Servicer specifically in
connection with this Agreement.
45
ARTICLE
VII.
THE
SERVICER
Section
7.01 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises
as a
limited liability company, and shall obtain and preserve its qualification
to do
business as a foreign entity in each jurisdiction in which such qualification
is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under
this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
(or limited liability company) resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall, with the prior written consent
of the
Master Servicer and NIMS Insurer be the successor of the Servicer hereunder,
without the execution or filing of any paper or any further act on the
part of
any of the parties hereto, anything herein to the contrary notwithstanding,
provided,
however,
that the
successor or surviving Person shall be an institution (i) having a net
worth of
not less than $25,000,000, and (ii) which is acceptable to the NIMS Insurer
and
which is a Xxxxxx Xxx or Xxxxxxx Mac-approved servicer in good
standing.
Section
7.02 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of
the
Servicer shall be under any liability to the Seller, the Master Servicer,
the
NIMS Insurer, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Servicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in
this
Agreement, or any liability which would otherwise be imposed by reason
of any
breach of the terms and conditions of this Agreement. The Servicer and
any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima facie properly executed and submitted by
any
Person respecting any matters arising hereunder. The Servicer shall not
be under
any obligation to appear in, prosecute or defend any legal action which
is not
incidental to its duties to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may involve it in any expense or liability,
provided,
however,
that the
Servicer may, with the consent of the NIMS Insurer and the Master Servicer,
undertake any such action which it may deem necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto. In such
event,
the Servicer shall be entitled to reimbursement from the Trust Fund for
the
reasonable legal expenses and costs of such action.
Section
7.03 Limitation
on Resignation and Assignment by the Servicer.
The
Seller has entered into this Agreement with the Servicer in reliance upon
the
independent status of the Servicer, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures,
its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Servicer shall neither assign its rights under this Agreement
or
the servicing hereunder nor delegate its duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets without, in each case, the prior written consent of
the
Seller, the Master Servicer and the NIMS Insurer which consent, in the
case of
an assignment of rights or delegation of duties, shall be granted or withheld
in
the discretion of the Seller, the Master Servicer and the NIMS Insurer
and which
consent, in the case of a sale or disposition of all or substantially all
of the
property or assets of the Servicer, shall not be unreasonably withheld
by any of
them; provided
that in
each case, there must be delivered to the Seller, the Master Servicer,
the
Trustee and the NIMS Insurer a letter from each Rating Agency to the effect
that
such transfer of servicing or sale or disposition of assets will not result
in a
qualification, withdrawal or downgrade of the then-current rating of any
of the
Certificates or the NIM Securities to be issued in the NIMS Transaction.
Notwithstanding the foregoing, the Servicer, without the consent of the
Seller,
the Master Servicer, the Trustee or the NIMS Insurer, may retain third
party
contractors to perform certain servicing and loan administration functions,
including without limitation, hazard insurance administration, tax payment
and
administration, flood certification and administration, collection services
and
similar functions; provided
that the
retention of such contractors by Servicer shall not limit the obligation
of the
Servicer to service the Mortgage Loans pursuant to the terms and conditions
of
this Agreement.
46
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer, the Master Servicer and the NIMS
Insurer or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by
the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to
the
Seller, the Master Servicer, the Trustee and the NIMS Insurer, which Opinion
of
Counsel shall be in form and substance acceptable to each of them. No such
resignation shall become effective until a successor shall have assumed
the
Servicer’s responsibilities and obligations hereunder in the manner provided in
Section 9.01.
Without
in any way limiting the generality of this Section 7.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell
or
otherwise dispose of all or substantially all of its property or assets,
without
the prior written consent of the Seller, the Master Servicer and the NIMS
Insurer, then such parties shall have the right to terminate this Agreement
upon
notice given as set forth in Section 8.01, without any payment of any penalty
or
damages and without any liability whatsoever to the Servicer or any third
party.
Section
7.04 Subservicing
Agreements and Successor Subservicer.
(a)
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph (b) of this
Section 7.04 and the proposed Subservicer (i) is an institution which is
an
approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated in writing,
(ii)
represents and warrants that it is in compliance with the laws of each
state as
necessary to enable it to perform its obligations under such subservicing
agreement and (iii) is acceptable to the NIMS Insurer. The Servicer shall
not
hire or otherwise utilize the services of any Subcontractor, and shall
not
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Servicer as servicer
under this Agreement unless the Servicer complies with the provisions of
paragraph (c) of this Section 7.04.
47
(b)
The
Servicer shall give prior written notice to the Trustee, the Master Servicer,
the Depositor and the NIMS Insurer of the appointment of any Subservicer
and
shall furnish to the Trustee, Master Servicer, the Depositor and the NIMS
Insurer a copy of any related subservicing agreement. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on Mortgage
Loans immediately upon receipt by any Subservicer of such payments. Any such
subservicing agreement shall be acceptable to the NIMS Insurer and be consistent
with and not violate the provisions of this Agreement. Each subservicing
agreement shall provide that a successor Servicer shall have the option
to
terminate such agreement without payment of any fees if the predecessor
Servicer
is terminated or resigns. The Servicer shall cause any Subservicer used
by the
Servicer (or by any Subservicer) to comply with the provisions of this
Section
7.04 and with Sections 4.02(c), 5.02, 5.03(a), 5.03(b), 5.04 (and shall
amend,
with the consent of the parties hereto, Exhibit H to reflect such Subservicer’s
assessment and attestation of compliance with the Servicing Criteria),
6.01(k)
and 6.03 and Exhibit H of this Agreement to the same extent as if such
Subservicer were the Servicer. The Servicer shall be responsible for obtaining
from each Subservicer and delivering to the Trustee, the NIMS Insurer,
the
Master Servicer and the Depositor any servicer compliance statement required
to
be delivered by such Subservicer under Section 5.03(a), any reports on
assessment of compliance and attestation required to be delivered by such
Subservicer under Sections 5.02 and 5.04 and any certification required
to be
delivered under 5.03(b) to the Person that will be responsible for signing
the
Sarbanes Certification under Section 5.04 as and when required to be delivered
hereunder.
(c)
On
or
prior to March 15 of each year, beginning in 2008, the Servicer shall provide
written notice to the Master Servicer and the Depositor of (A) which (if
any)
Subcontractors are Participating Entities, and (B) which elements of the
servicing criteria set forth under Item 1122(d) of Regulation AB will be
addressed in assessments of compliance provided by each Subcontractor for
which
the Servicer does not elect to take responsibility for assessing compliance
with
the servicing criteria in accordance with Regulation AB Telephone Interpretation
17.06 identified pursuant to clause (A) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a
Participating Entity, the Servicer shall cause any such Subcontractor used
by
the Servicer (or by any Subservicer) for the benefit of the Trustee, the
NIMS
Insurer, the Master Servicer and the Depositor to comply with the provisions
of
Sections 4.02(c), 5.02, 5.04, 6.01(k) and 6.03 and Exhibit H of this Agreement
to the same extent as if such Subcontractor were the Servicer. The Servicer
shall be responsible for obtaining from each Subcontractor for which the
Servicer does not elect to take responsibility for assessing compliance
with the
servicing criteria in accordance with Regulation AB Telephone Interpretation
17.06 and delivering to the Trustee, the NIMS Insurer, the Master Servicer
and
the Depositor any assessment of compliance and attestation required to
be
delivered by such Subcontractor under Sections 5.02 and 5.04, in each case
as
and when required to be delivered.
The
Servicer acknowledges that a Subcontractor that performs services with
respect
to mortgage loans involved in this transaction in addition to the Mortgage
Loans
may be determined by the Depositor to be a Participating Entity on the
basis of
the aggregate balance of such mortgage loans, without regard to whether
such
Subcontractor would be a Participating Entity with respect to the Mortgage
Loans
viewed in isolation. The Servicer shall (A) respond as promptly as practicable
to any good faith request by the Trustee, the Master Servicer or the Depositor
for information regarding each Subcontractor and (B) cause each Subcontractor
with respect to which the Trustee, the Master Servicer or the Depositor
requests
delivery of an assessment of compliance and accountants’ attestation to deliver
such within the time required under Section 5.04.
48
Notwithstanding
any subservicing agreement or the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Subservicer, Subcontractor
or other third party or reference to actions taken through a Subservicer,
a
Subcontractor, another third party or otherwise, the Servicer shall remain
obligated and primarily liable to the Trust Fund, the Trustee, the Master
Servicer, the NIMS Insurer and the Certificateholders for the servicing
and
administering of the Mortgage Loans in accordance with the provisions hereof
without diminution of such obligation or liability by virtue of any
subservicing, subcontracting or other agreements or arrangements or by
virtue of
indemnification from a Subservicer, Subcontractor or a third party and
to the
same extent and under the same terms and conditions as if the Servicer
alone
were servicing the Mortgage Loans, including with respect to compliance
with
Item 1122 of Regulation AB. The Servicer shall be entitled to enter into
any
agreement with a Subservicer, Subcontractor or a third party for indemnification
of the Servicer by such Subservicer, Subcontractor or third party and nothing
contained in the Agreement shall be deemed to limit or modify such
indemnification.
Section
7.05 Inspection.
The
Servicer shall offer the Master Servicer and the NIMS Insurer, upon reasonable
advance notice, during normal business hours, access to all records maintained
by the Servicer in respect of its rights and obligations hereunder and
access to
officers of the Servicer responsible for such obligations. Upon request,
the
Servicer shall furnish to the Master Servicer and the NIMS Insurer its
most
recent publicly available financial statements and such other information
relating to its capacity to perform its obligations under this
Agreement.
ARTICLE
VIII.
TERMINATION
Section
8.01 Termination
for Cause.
This
Agreement shall be terminable at the option of the Seller or the Master
Servicer
if any of the following events of default exist on the part of the
Servicer:
(i)
any
failure by the Servicer to remit to the Master Servicer any payment required
to
be made under the terms of this Agreement which continues unremedied for
a
period of two Business Days after the date upon which written notice of
such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Master Servicer or the NIMS Insurer; or
49
(ii)
any
failure by the Servicer to duly perform, within the required time period
and
without notice, its obligations to provide any certifications required
pursuant
to Sections 5.02, 5.03 or 5.04 (including with respect to such certifications
required to be provided by any Subservicer or Subcontractor pursuant to
Section
7.04), which failure continues unremedied for a period of ten (10) days
from the
date of delivery required with respect to such certification; or
(iii)
except
with respect to those items listed in clause (ii) above, any failure by
the
Servicer to duly perform, within the required time period, without notice
or
grace period, its obligations to provide the information, data and materials
required to be provided hereunder pursuant to Sections 4.02(c), 4.02(d),
6.01(k)
and 7.04, including any items required to be included in any Exchange Act
report; or
(iv)
failure
by the Servicer duly to observe or perform in any material respect any
other of
the covenants or agreements on the part of the Servicer set forth in this
Agreement which continues unremedied for a period of 30 days; or
(v)
failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction, if required by such jurisdiction, where
the
Mortgaged Properties are located; or
(vi)
a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days;
or
(vii)
the
Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Servicer or of
or
relating to all or substantially all of its property; or
(viii)
the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations or cease its
normal
business operations for three Business Days; or
(ix)
the
Servicer ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac
seller/servicer; or
(x)
the
Servicer attempts to assign the servicing of the Mortgage Loans or its
right to
servicing compensation hereunder or the Servicer attempts to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof (to other than a third party in the case
of
outsourcing routine tasks including, but not limited to, taxes, insurance,
property inspection, reconveyance, collection or brokering REO Property),
in
each case without complying fully with the provisions of Section
7.03.
50
In
each
and every such case, so long as an event of default shall not have been
remedied
within the applicable cure period, in addition to whatever rights the Seller,
the Master Servicer, the Trustee or the NIMS Insurer may have at law or
equity
to damages, including injunctive relief and specific performance, the Seller,
the Master Servicer, the Trustee or the NIMS Insurer, by notice in writing
to
the Servicer, may terminate all the rights and obligations of the Servicer
under
this Agreement and in and to the servicing contract established hereby
and the
proceeds thereof.
Upon
receipt by the Servicer of such written notice, all authority and power
of the
Servicer under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in a successor Servicer appointed
by the
Master Servicer with the consent of the other party and the NIMS Insurer.
Upon
written request from the Master Servicer, the Servicer shall prepare, execute
and deliver to the successor entity designated by the Master Servicer any
and
all documents and other instruments, place in such successor’s possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer and endorsement or assignment of the Mortgage
Loans and related documents, at the Servicer’s sole expense. The Servicer shall
cooperate with the Seller, the Master Servicer, the NIMS Insurer, the Trustee
and such successor servicer in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts
which
shall at the time be credited by the Servicer to the Custodial Account
or Escrow
Account or thereafter received with respect to the Mortgage Loans.
By
a
written notice the Seller or the Master Servicer with the consent of the
other
parties and the NIMS Insurer may waive any default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any
waiver
of a past default, such default shall cease to exist, and any Event of
Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other
default
or impair any right consequent thereon except to the extent expressly so
waived.
Upon
a
termination for cause pursuant to Section 8.01, all unreimbursed Servicing
Fees,
Servicing Advances and Monthly Advances still owing the Servicer shall
be paid
by the Trust Fund as such amounts are received from the related Mortgage
Loans.
Section
8.02 Termination
Without Cause.
(a)
This
Agreement shall terminate upon: (i) the later of (a) the distribution of
the
final payment or liquidation proceeds on the last Mortgage Loan to the
Master
Servicer (or advances by the Servicer for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and
the
remittance of all funds due hereunder, (ii) mutual consent of the Servicer,
the
Seller and the Master Servicer in writing, provided
such
termination is also acceptable to the Rating Agencies and the NIMS Insurer
or
(iii) with the prior written consent of the Master Servicer and the NIMS
Insurer
at the discretion of the Seller. Any such termination pursuant to clause
(iii)
above shall be with 30 days’ prior notice, in writing and delivered to the
Master Servicer, the NIMS Insurer and the Servicer by registered mail to
the
addresses set forth in Section 9.03 of this Agreement. The Servicer shall
comply
with the termination procedures set forth in Sections 7.03, 8.01 and 9.01
hereof. Neither the Master Servicer nor the NIMS Insurer shall have the
right to
terminate the Servicer pursuant to clause (iii) of this Section 8.02(a).
In
connection with a termination by the Seller pursuant to clause (iii) of
this
Section 8.02(a), the Servicer shall be reimbursed by the Seller for all
unreimbursed out-of-pocket Servicing Advances, Monthly Advances and Servicing
Fees and other reasonable and necessary out-of-pocket costs associated
with any
transfer of servicing at the time of such transfer of servicing. All invoices
received by the Servicer after termination will be forwarded to the Seller
or
the successor servicer for payment within thirty (30) days of receipt from
the
Servicer.
51
(b)
In
the
event that the Servicer decides to terminate its obligations under this
Agreement as set forth in clause (ii) of Section 8.02(a), the Servicer
agrees
that it will continue to service the Mortgage Loans beyond the prescribed
termination date until such time as the Master Servicer, using reasonable
commercial efforts, is able to appoint a successor servicer acceptable
to the
NIMS Insurer and otherwise meeting the characteristics of Sections 7.01
and
9.01.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01 Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02(a)(ii), the
Master
Servicer shall (i) within 90 days of the Servicer’s notice of such termination,
succeed to and assume all of the Servicer’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer’s responsibilities, duties and liabilities under
this Agreement; or (b) pursuant to a termination under Section 8.02(a)(iii),
the
Seller shall appoint a successor having the characteristics set forth in
clauses
(i) and (ii) of Section 7.01 and which shall succeed to all rights and
assume
all of the responsibilities, duties and liabilities of the Servicer under
this
Agreement simultaneously with the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. Any successor to
the Servicer shall be subject to the approval of the Master Servicer and
the
NIMS Insurer shall be a member in good standing of the MERS system (if
any of
the Mortgage Loans are MERS Eligible Mortgage Loans, unless such Mortgage
Loans
are withdrawn from MERS and Assignments of Mortgage are recorded in favor
of the
Trustee at the expense of the successor Servicer). Any approval of a successor
servicer by the Master Servicer and the NIMS Insurer shall, if the successor
servicer is not at that time a servicer of other Mortgage Loans for the
Trust
Fund, be conditioned upon the receipt by the Master Servicer, the NIMS
Insurer,
the Seller and the Trustee of a letter from each Rating Agency to the effect
that such transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates or the
NIM
Securities to be issued in the NIMS Transaction. In connection with such
appointment and assumption, the Master Servicer or the Seller, as applicable,
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree, provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under
this
Agreement. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge
of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and
shall
take no action whatsoever that might impair or prejudice the rights or
financial
condition of its successor. The resignation or removal of the Servicer
pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 9.01 and shall in no event
relieve
the Servicer of the representations and warranties made pursuant to Sections
6.01 and the remedies available to the Master Servicer, the Trustee, the
NIMS
Insurer and the Seller under Sections 6.02, 6.03 and 6.04, it being understood
and agreed that the provisions of such Sections 6.01, 6.02, 6.03 and 6.04
shall
be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement. Neither
the
Master Servicer, in its capacity as successor servicer, nor any other successor
servicer shall be responsible for the lack of information and/or documents
that
are not transferred to it by the Servicer and that it cannot otherwise
obtain
through reasonable efforts.
52
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Servicer shall prepare, execute
and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer and
endorsement of the Mortgage Notes and related documents, and the preparation
and
recordation of Assignments of Mortgage. The Servicer shall cooperate with
the
Trustee, the Master Servicer or the Seller, as applicable, and such successor
in
effecting the termination of the Servicer’s responsibilities and rights
hereunder and the transfer of servicing responsibilities to the successor
Servicer, including without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans. Notwithstanding anything to the contrary
set
forth herein, the Servicer shall not be prohibited from retaining copies
of the
Mortgage Loan documents, Servicing Files and other records related to the
Mortgage Loans as the Servicer reasonably deems necessary.
53
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer, the Master Servicer, the NIMS Insurer and the
Seller
an instrument (i) accepting such appointment, wherein the successor shall
make
the representations and warranties set forth in Section 6.01 (including
a
representation that the successor servicer is a member of MERS, unless
none of
the Mortgage Loans are MERS Mortgage Loans or MERS Eligible Mortgage Loans
or
any such Mortgage Loans have been withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trustee) and provide for the same
remedies
set forth in Sections 6.02, 6.03 and 6.04 herein and (ii) an assumption
of the
due and punctual performance and observance of each covenant and condition
to be
performed and observed by the Servicer under this Agreement, whereupon
such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like
effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that the
Seller,
the Master Servicer, the NIMS Insurer or the Trustee may have against the
Servicer arising out of the Servicer’s actions or failure to act prior to any
such termination or resignation. In addition, in the event any successor
servicer is appointed pursuant to Section 8.02(a)(iii) of this Agreement,
such
successor servicer must satisfy the conditions relating to the transfer
of
servicing set forth in the Trust Agreement.
The
Servicer shall deliver promptly to the successor servicer the funds in
the
Custodial Account and Escrow Account (and any funds thereafter received
by it
with respect to the Mortgage Loans) and all Mortgage Loan documents and
related
documents and statements held by it hereunder and the Servicer shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest
in the
successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Trustee, the Seller, the Master Servicer, the NIMS Insurer and the Depositor
of
such appointment in accordance with the procedures set forth in Section
9.03.
Section
9.02 Costs.
The
Seller shall pay the legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall
be paid
by the Seller. Subject to Sections 2.02 and 3.01(a), the Seller, on behalf
of
the Depositor, shall pay the costs associated with the preparation, delivery
and
recording of Assignments of Mortgages.
Section
9.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if sent by facsimile or mailed by overnight
courier, addressed as follows (or such other address as may hereafter be
furnished to the other party by like notice):
54
(i) if
to
LBH:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 0000-00X
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(ii) if
to
the Servicer:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxx Xxxxxx (LXS 0000-00X)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with
a
copy to:
Aurora
Loan Services LLC
0000
Xxxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Manager, Loan Administration (LXS 0000-00X)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(iii) if
to
the Master Servicer:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(iv) if
to
the Trust Fund or the Trustee:
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
(vii) if
to
the Depositor:
55
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Any
such
demand, notice or communication hereunder shall be deemed to have been
received
on the date delivered to or received at the premises of the addressee.
Notwithstanding anything to the contrary in this Agreement, the Servicer
shall
not be obligated to provide notices pursuant to this Agreement to any NIMS
Insurer or any other party whose address is not provided in this Section
9.03
until 30 days after the Servicer has received notice of the appointment
of such
NIMS Insurer or such other party (including the name, address, telephone
number
and facsimile number of such party).
Section
9.04 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which
prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this
Agreement
without regard to such invalidity.
Section
9.05 No
Personal Solicitation.
From
and
after the Closing Date, the Servicer hereby agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Servicer’s behalf, to
personally, by telephone or mail, solicit the borrower or obligor under
any
Mortgage Loan (on a targeted basis) for any purposes of prepayment, refinancing
or modification of the related Mortgage Loan, provided,
however,
that
this limitation shall not prohibit the Servicer from soliciting such Mortgagor
for purposes of prepayment, refinance or modification of any loan owned
or
serviced by the Servicer other than a Mortgage Loan. Notwithstanding the
foregoing, it is understood and agreed that, among other marketing activities,
promotions and solicitations (including, without limitation, those for
purposes
of prepayment, refinance or modification) undertaken by the Servicer which
are
directed to the general public at large or which are directed generally
to a
segment of the then existing customers of the Servicer or any of its affiliates
(including, without limitation, the mailing of promotional materials to
the
Servicer’s or its affiliates’ deposit customers by inserting such materials into
customer account statements, billing statements and coupon books, mass
mailings
based on commercially acquired mailing lists and newspaper, radio and television
advertisements, solicitations included on the Servicer’s website and voice
response system and solicitations made on the basis of information acquired
by
the Servicer or its affiliates that indicates that a borrower may be planning
to
refinance) shall not constitute solicitation under this section. Language
included on or in the Servicer’s website, interactive voice response system,
coupon books or billing statements that is not specifically targeted at
the
borrower or obligor under any Mortgage Loan, shall not be deemed to constitute
solicitations under Section 9.05. In the event the Servicer does refinance
any
Mortgage Loan as a result of a violation of the requirements set forth
in this
Section 9.05, the Servicer hereby agrees to pay to the Trust Fund an amount
equal to the difference, if any, between the amount that the Trust Fund
would
have received if it had sold the Mortgage Loan to a third party, and the
proceeds received by the Trust Fund as a result of such refinancing.
Notwithstanding anything to the contrary, this section shall not prohibit
the
Servicer or its agent or affiliates from serving the refinancing needs
or other
financial needs of a Mortgagor who, without solicitation, contacts the
Servicer
or its agents or affiliates directly.
56
Section
9.06 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original, and all such counterparts
shall
constitute one and the same instrument.
Section
9.07 Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Seller in the State of New York and shall be deemed to
have been
made in the State of New York. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
9.08 Further
Agreements.
The
Seller, the Master Servicer and the Servicer each agree to execute and
deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes
of
this Agreement.
Section
9.09 Intention
of the Parties.
It
is the
intention of the parties that the Seller is conveying, and the Servicer
is
receiving only a contract for servicing the Mortgage Loans. Accordingly,
the
parties hereby acknowledge that the Trust Fund remains the sole and absolute
owner of the Mortgage Loans and all rights (other than the servicing rights)
related thereto.
57
Section
9.10 Successors
and Assigns; Assignment of Servicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by
the
Servicer, the Seller, the Trustee, the NIMS Insurer and the Master Servicer
and
their respective successors and assigns. This Agreement shall not be assigned,
pledged or hypothecated by the Servicer to a third party except in accordance
with Section 7.03 and shall not be assigned, pledged or hypothecated by
the
Seller, as applicable, without the consent of the NIMS Insurer except as
and to
the extent provided in Section 9.11.
Section
9.11 Assignment
by the Seller.
The
Seller shall have the right, upon notice to but without the consent of
the
Servicer, to assign, in whole or in part (but exclusive of such Seller’s rights
as owner of the servicing rights relating to the Mortgage Loans), its interest
under this Agreement to the Depositor, which in turn shall assign such
rights to
the Trustee, and the Trustee then shall succeed to all rights of such Seller
under this Agreement. All references to the Seller in this Agreement shall
be
deemed to include its assignee or designee and any subsequent assignee
or
designee, specifically including the Trustee, except with respect to the
Seller’s retained servicing rights pursuant to Section
8.02(a)(iii).
The
Seller shall have the right, upon notice to but without the consent of
the
Servicer, to assign, in whole or in part, its retained servicing rights.
All
references to the Seller in this Agreement, in its capacity as an owner
of
servicing rights, shall be deemed to include the assignee or designee and
any
subsequent assignee or designee, of such Seller’s rights arising pursuant to
Section 8.02(a)(iii).
Section
9.12 Amendment.
This
Agreement may be amended from time to time by mutual written agreement
signed by
the Master Servicer, the Seller and the Servicer with the consent of the
NIMS
Insurer, provided
that the
party requesting such amendment shall, at its own expense, provide the
Trustee,
the NIMS Insurer, the Master Servicer and the Seller with an Opinion of
Counsel
that such amendment will not materially adversely affect the interest of
the
Certificateholders in the Mortgage Loans or the NIM Securities to be issued
in
the NIMS Transaction. Any such amendment shall be deemed not to adversely
affect
in any material respect any the interest of the Certificateholders in the
Mortgage Loans or the NIM Securities to be issued in the NIMS Transaction,
if
the Trustee receives written confirmation from each Rating Agency that
such
amendment will not cause such Rating Agency to reduce, qualify or withdraw
the
then current rating assigned to the Certificates and the NIM Securities
(and any
Opinion of Counsel received by the Trustee, the NIMS Insurer, the Master
Servicer and the Seller in connection with any such amendment may rely
expressly
on such confirmation as the basis therefor); provided,
however,
this
Agreement may be amended by the Servicer, the Seller, the Master Servicer
and
the Trustee from time to time without the delivery of an Opinion of Counsel
described above to the extent necessary, in the judgment of the Seller
and its
counsel, to comply with the rules of the Commission.
58
Section
9.13 Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced and is consented to by the NIMS
Insurer.
Section
9.14 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
9.15 Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree
that
it is appropriate, in furtherance of the intent of such parties as set
forth
herein, that the Trustee, the Depositor and the NIMS Insurer receive the
benefit
of the provisions of this Agreement as intended third party beneficiaries
of
this Agreement to the extent of such provisions. The Servicer shall have
the
same obligations to the Trustee, the Depositor and the NIMS Insurer as
if they
were parties to this Agreement, and the Trustee (acting through the Master
Servicer), the Depositor and the NIMS Insurer shall have the same rights
and
remedies to enforce the provisions of this Agreement as if they were parties
to
this Agreement. The Servicer shall only take direction from the Master
Servicer
(if direction by the Master Servicer is required under this Agreement)
unless
otherwise directed by this Agreement. Notwithstanding the foregoing, all
rights
of the Trustee and the Depositor hereunder (other than the right to
indemnification) and all rights and obligations of the Master Servicer
hereunder
(other than the right to indemnification) shall terminate upon the termination
of the Trust Fund pursuant to the Trust Agreement and all rights of the
NIMS
Insurer set forth in this Agreement (other than the right of indemnification)
shall exist only so long as the NIM Securities issued pursuant to the NIMS
Transaction remain outstanding or the NIMS Insurer is owed amounts in respect
of
its guarantee of payment on such NIM Securities.
Section
9.16 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c)
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
59
(d)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e)
the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f)
the
term
“include” or “including” shall mean by reason of enumeration.
Section
9.17 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the
original
is in existence and whether or not such reproduction was made by a party
in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
9.18 Protection
of Confidential Information.
The
Servicer shall keep confidential and shall not divulge to any party, without
the
Seller’s prior written consent, any nonpublic information pertaining to the
Mortgage Loans or any borrower thereunder, except to the extent that it
is
appropriate for the Servicer to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies or it is otherwise in
accordance with Accepted Servicing Practices.
60
IN
WITNESS WHEREOF, the Servicer, the Seller and the Master Servicer have
caused
their names to be signed hereto by their respective officers thereunto
duly
authorized as of the date first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:__/s/
Xxxxx X. Kiernan__________________
Name:
Xxxxx
X. Xxxxxxx
Title:
Authorized Signatory
AURORA
LOAN SERVICES LLC,
as
Servicer
By:____/s/
Xxxxx X. Greene__________________
Name:
Xxxxx X. Xxxxxx
Title:
Assistant Vice President
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:___/s/
Xxxxxxx Olds___________________
Name:
Xxxxxxx Xxxx
Title:
Vice President
Acknowledged
By:
U.S.
BANK, NATIONAL ASSOCIATION,
as
Trustee
By:___/s/
Xxxxx Byrnes______________________
Name:
Xxxxx Xxxxxx
Title:
Vice President
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(Including
Prepayment Charge Schedule)
[To
be
retained in a separate closing binder entitled “LXS 2007-17H Mortgage Loan
Schedules” at XxXxx Xxxxxx LLP]
A-1
EXHIBIT
B
CUSTODIAL
ACCOUNT CERTIFICATION NOTICE
_________,
20__
To:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx Xxxx
(LXS
2007-17H)
As
Servicer under the Servicing Agreement, dated as of September 1, 2007 among
Aurora Loan Services LLC, as Servicer, Xxxxxx Brothers Holdings Inc., as
Seller
and you, as Master Servicer (the “Agreement”), we hereby certify to you that we
have established an account at [insert name of financial institution] as
a
Custodial Account pursuant to Section 3.03 of the Agreement, to be designated
as
“Aurora Loan Services LLC in trust for the Trustee for the Xxxxxx XS Trust
Mortgage Pass-Through Certificates, Series 2007-17H.” All deposits in the
account shall be subject to withdrawal therefrom by order signed by the
Servicer.
AURORA
LOAN SERVICES LLC
By:
Name:
Title:
B-1
EXHIBIT
C
ESCROW
ACCOUNT CERTIFICATION NOTICE
_______
__, 20__
To:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx Xxxx
(LXS
2007-17H)
As
Servicer under the Servicing Agreement, dated as of September 1, 2007 among
Aurora Loan Services LLC, as Servicer, Xxxxxx Brothers Holdings Inc., as
Seller
and you, as Master Servicer (the “Agreement”), we hereby certify to you that we
have established an account at [insert name of financial institution],
as an
Escrow Account pursuant to Section 3.05 of the Agreement, to be designated
as
“Aurora Loan Services LLC in trust for the Trustee for the Xxxxxx XS Trust
Mortgage Pass-Through Certificates, Series 2007-17H.” All deposits in the
account shall be subject to withdrawal therefrom by order signed by the
Servicer.
AURORA
LOAN SERVICES LLC
By:
Name:
Title:
X-0
XXXXXXX
X-0
FORM
OF
MONTHLY REMITTANCE ADVICE
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
BEGINNING
TRIAL BALANCE FOR ACTUAL/ACTUAL,
|
||
REQUIRED
|
||
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||
REQUIRED,
.00 IF NO COLLECTIONS
|
||
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
.00
IF NOT APPLICABLE
|
||
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGE OFF
|
||
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGE OFF
|
||
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
Example
.0700000 for 7.00%
|
||
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals Example .0025000 for .25%
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
Example
.0675000 for 6.75%
|
||
PIPMT
|
P&I
CONSTANT, REQUIRED
|
Number
two decimals
|
.00
IF PAIDOFF
|
X-0-0
XXXXXXX
X-0
XXXXXXXX
XXXXXX FOR MONTHLY DEFAULTED LOAN REPORT
Column
|
Data
Field
|
Format
|
Data
Description
|
A
|
Servicer
loan number
|
VARCHAR2(15)
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
B
|
Loan
type
|
VARCHAR2(2)
1=FHA Residential 2=VA Residential 3=Conventional w/o PMI 4=Commercial
5=FHA Project 6=Conventional w/PMI 7=HUD 235/265 9=Farm Loan
|
Type
of loan being serviced generally defined by the existence of
certain types
of insurance. (ie: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.)
|
C
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
D
|
Delinquency
flag
|
VARCHAR2(2)
Y= 90+ delinq. Not in FC, Bky or Loss mit N=Less than 90 days
delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent
but is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
E
|
Foreclosure
flag
|
VARCHAR2(2)
Y=Active foreclosure N=No active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in
foreclosure
proceedings.
|
D-2-1
F
|
Bankruptcy
flag
|
VARCHAR2(2)
Y=Active Bankruptcy N=No Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
G
|
Loss
mit flag
|
VARCHAR2(2)
Y= Active loss mitigation N=No active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in
completing
a loss mitigation alternative.
|
H
|
Post
Foreclosure Flag
|
R=REO
C=Claims T=Third Party N= No FC sale held
|
Servicer
defined indicator that identifies that the property is in REO/Claims
or
went to a Third Party at FC sale
|
I
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
J
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
Actual
date that foreclosure counsel filed the first legal action as
defined by
state statute.
|
K
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
Date
that the foreclosure sale is either project or scheduled to be
held.
|
L
|
Foreclosure
actual sale held date
|
DATE(MM/DD/YYYY)
|
Actual
date that the foreclosure sale was held.
|
M
|
3rd
Party Sale
|
VARCHAR2(7)
Y= Sold to a 3rd Party at FC sale N= Sold back to noteholder
at FC
sale
|
Servicer
defined indicator that idenities that the loan was sold to a
3rd Party at
Foreclosure Sale
|
N
|
Bankruptcy
filed date
|
DATE(MM/DD/YYYY)
|
Actual
date that the bankruptcy petition is filed with the
court.
|
D-2-2
O
|
Bankruptcy
chapter
|
VARCHAR2(2)
7= Chapter 7 filed 11= Chapter 11 filed 12= Chapter 12 filed
13= Chapter
13 filed
|
Chapter
of bankruptcy filed.
|
P
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
Q
|
Pre
and Post Payments paid by trustee
|
VARCHAR2(2)
Y=Trustee Pays both N=No Trustee only pays Pre Payments
|
To
identify if the trustee makes the pre and post petition payments
throughout the Bankruptcy.
|
R
|
Bankruptcy
discharge date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
S
|
BK
Relief/Dismissal Granted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the dismissal or relief from stay order is entered
by the
bankruptcy court.
|
T
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
U
|
Loss
mit type
|
VARCHAR2(2)
CH= Charge off DI= Deed in lieu FB= Forbearance plan/repay MO=Modification
PC=Partial claim SH=Short sale VA=VA refunding SL= Solication
of Loss
Mit
|
The
defined loss mitigation alternative identified on the loss mit
approval
date.
|
D-2-3
V
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
W
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
X
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
The
initial/first date that the property was listed with an agent
as an
REO.
|
Y
|
REO
original list price
|
NUMBER(15,2)
|
The
initial/first price that was used to list the property with an
agent as an
REO.
|
Z
|
REO
current list price
|
NUMBER(15,2)
|
The
current list price of the REO
|
AA
|
REO
sales price
|
NUMBER(10,2)
|
The
actual REO sales price
|
AB
|
REO
offer accepted
|
DATE(MM/DD/YYYY)
|
The
actual date that the REO offer was accepted.
|
AC
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
The
actual date that the sale of the REO property closed
escrow.
|
AD
|
REO
net proceeds received
|
NUMBER(10,2)
|
The
actual REO sales price less closing costs paid. The net sales
proceeds are
identified within the HUD1 settlement statement.
|
AE
|
Eviction
start date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
D-2-4
AF
|
Eviction
complete date
|
DATE(MM/DD/YYYY)
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
AG
|
MI
claim filed date
|
DATE(MM/DD/YYYY)
|
Actual
date that the claim was submitted to the PMI company.
|
AH
|
MI
claim amount filed
|
NUMBER(15,2)
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
AI
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
AJ
|
MI
claim amount paid
|
NUMBER(15,2)
|
The
amount of the claim that the MI company paid.
|
AK
|
MI
Interest Paid to Date
|
DATE
(MM/DD/YYYY)
|
The
date through which MI paid interest
|
AL
|
Clear
Title Date
|
DATE
(MM/DD/YYYY)
|
Actual
date that the property became marketable.
|
AM
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
AN
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
AO
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
AP
|
FHA
Part B Funds Received Date
|
DATE(MM/DD/YYYY)
|
|
AQ
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
D-2-5
AR
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
The
date that the funds from the specified bid were received by the
servicer
from the VA.
|
AS
|
VA
first funds received amount
|
NUMBER(15,2)
|
The
amount of funds received by the servicer from VA as a result
of the
specified bid.
|
AT
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
The
actual date that the title approval was received as set forth
in the HUD
title approval letter.
|
AU
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
AV
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
The
actual date that funds were received by the servicer from the
VA for the
expense claim submitted by the servicer.
|
AW
|
VA
Claim funds received amount
|
NUMBER(15,2)
|
The
amount of funds received by the servicer from VA as a result
of the
specified bid.
|
AX
|
Current
Value
|
NUMBER(10,2)
|
The
most recent value of the property.
|
AY
|
Current
Value Source
|
VARCHAR2(15)
BPO= Broker's Price Opinion Appraisal=Appraisal Blank = Assumed
BPO if
Value and Date reported
|
Name
of vendor or management company that provided the
value.
|
AZ
|
Current
Value date
|
DATE(MM/DD/YYYY)
|
The
most recent value date of the
property.
|
D-2-6
BA
|
Current
Occupancy status
|
VARCHAR2(1)
O=Owner occupied T=Tenant occupied U=Unknown V=Vacant
|
The
most recent status of the property regarding who if anyone is
occupying
the property. Typically a result of a routine property
inspection.
|
BB
|
Date
of last property inspection
|
DATE(MM/DD/YYYY
)
|
The
date of the most recent property inspection
|
BC
|
Property
condition
|
VARCHAR2(2)
1= Excellent 2=Good 3=Average 4=Fair 5=Poor 6=Very poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management
company.
|
D-2-7
BD
|
Reason
for default
|
VARCHAR2(3)
001=Death of principal mtgr 002=Illness of principal mtgr 003=Illness
of
mtgr's family member 004=Death of mtgr's family member 005=Marital
difficulties 006=Curtailment of income 007=Excessive obligations
008=Abandonment of property 009=Distant employee transfer 011=Property
problem/Natural Disaster 012=Inability to sell property 013=Inability
to
rent property 014=Military service 015=Other 016=Unemployment
017=Business
failure 019=Casualty loss 022=Energy-Environment costs 023= Servicing
problems 026= Payment adjustment 027=Payment dispute 029=Transfer
ownership pending 030=Fraud 031=Unable to contact borrower
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor. (Standard FNMA Reasons
for
Default)
|
D-2-8
BE
|
Corporate
expense balance
|
NUMBER(10,2)
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
BF
|
Escrow
balance
|
NUMBER(10,2)
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only)
|
BG
|
Escrow
advance balance
|
NUMBER(10,2)
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only)
|
BH
|
Suspense
balance
|
NUMBER(10,2)
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow, etc.
|
BI
|
Restricted
escrow balance
|
NUMBER(10,2)
|
Money
held in escrow by the mortgage company through completion of
repairs to
property.
|
D-2-9
BJ
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
Number
that is assigned individually to the loan by either HUD or VA
at the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
BK
|
Senior
Lien Balance
|
NUMBER(10,2)
|
Current
Principal Balance on First lien or Original Principal Balance
|
BL
|
Litigation
in process
|
VARCHAR2(7)
Y=Active N=No active
|
Any
delinquent loan that is not able to be Foreclosed on or the REO
is not
marketable
|
BM
|
Loan
Liquidated
|
VARCHAR2
CH-Charge off SS-Short sale REO-REO VA-VA Refunding
|
Type
of liquidation within the last 30 days.
|
BN
|
Date
of Liquidation
|
DATE(MM/DD/YYYY)
|
Date
the CH, SS, REO or VA was liquidation off of servicer
system.
|
BO
|
Bankruptcy
Loss
|
NUMBER(10,2)
|
Cramdown
amount associated with the
|
BP
|
%
of MI coverage
|
NUMBER(6,5)
|
%
of Coverage of MI
|
BQ
|
MI
Carrier
|
|
Name
of the MI Company
|
BR
|
MI
Certification Number
|
VARCHAR2(15)
|
MI
Cerftificaiton Number
|
BS
|
%
of Pool MI Coverage
|
NUMBER(6,5)
|
|
BT
|
Pool
MI Carrier
|
|
|
BU
|
Pool
MI Certification Number
|
VARCHAR2(15)
|
|
BV
|
VA
Interest Cutoff Date
|
DATE(MM/DD/YYYY)
|
The
date in which VA has determine the Cut off
date
|
D-2-10
BW
|
Investor
number
|
NUMBER
(10,2)
|
Unique
number assigned to a group of loans in the servicing system.
|
BX
|
Estimated
(Loss)/Gain
|
NUMBER
(10,2)
|
The
projected loss at REO
|
D-2-11
EXHIBIT
E
LXS
2007-17H Trust Agreement
E-1
EXHIBIT
F
[Date]
FORM
OF
ANNUAL CERTIFICATION
Re:
|
The
Servicing Agreement dated as of September 1, 2007 (the “Agreement”), by
and among Xxxxxx Brothers Holdings Inc., Aurora Loan Services
LLC (the
“Servicer,” in such capacity and the “Master Servicer,” in such capacity),
and acknowledged by U.S. Bank, National Association, as Trustee
(the
“Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Trustee, the Master Servicer and Structured Asset Securities Corporation
(the “Depositor”), and their officers, with the knowledge and intent that they
will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor,
the
Master Servicer and the Trustee pursuant to the Agreement (collectively,
the
“Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor,
the
Master Servicer and the Trustee;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed
in the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
F-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant
to the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Depositor, the Master Servicer and
the
Trustee. Any material instances of noncompliance described in such reports
have
been disclosed to the Depositor, the Master Servicer and the Trustee. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________
By:
________________________________
Name:
Title:
F-2
EXHIBIT
G
XXXXXX
MAE GUIDE NO. 95-19
Reference
·
|
Selling
|
This
announcement amends the guide(s) indicated.
|
·
|
Servicing
|
Please
keep it for reference until we issue a formal
change.
|
Subject
|
“Full-File”
Reporting to Credit Repositories
|
Part
IV,
Section 107, of the servicing Guide currently requires servicers to report
only
90-day delinquencies to the four major credit repositories. To ensure that
the
repositories have up-to-date information for both servicing and origination
activity, we have decided to begin requiring—as of the month ending March 31,
1996—servicers to provide the credit repositories a “full-file” status report
for the mortgages they service for us.
“Full-file”
reporting requires that servicers submit a monthly report to each of the
credit
repositories to describe the exact status for each mortgage they service
for us.
The status reported generally should be the one in effect as of the last
business day of each month. Servicers may, however, use a slightly later
cut-off
date—for example, at the and of the first week of a month—to assure that payment
corrections, returned checks, and other adjustments related to the previous
month’s activity can be appropriately reflected in their report for that month.
Statuses that must be reported for any given mortgage include the following:
new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed,
and
charged-off. (The credit repositories will provide the applicable codes
for
reporting these statuses to them.) A listing of each of the major repositories
to which “full-file” status reports must be sent is attached.
Servicers
are responsible for the complete and accurate reporting of mortgage status
information to the repositories and for resolving any disputes that arise
about
the information they report. Servicers must respond promptly to any inquiries
from borrowers regarding specific mortgage status information about them
that
was reported to the credit repositories.
Servicers
should contact their Customer Account Team in their lead Xxxxxx Xxx regional
office if they have any questions about this expanded reporting
requirement.
Xxxxxx
X.
Engeletad
Senior
Vice President - Mortgage and Lender Standards
11/20/95
G-1
XXXXXX
XXX GUIDE 95-19
ATTACHMENT
1
ANNOUNCEMENT
Major
Credit Repositories
A
“full-file” status report for each mortgage serviced for Xxxxxx Mae must be sent
to the following repositories each month (beginning with the month ending
March
31, 1996):
Company
|
Telephone
Number
|
Consumer
Credit Associates, Inc.
Xxxxxxxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000-0000
|
Call
(000) 000-0000, either extension
950
150, 101, or 112, for all inquiries.
|
Equifax
|
Members
that have an account number may call their local sales representative
for
all inquiries; lenders that need to set up an account should
call (000)
000-0000 and select the customer assistance option.
|
TRW
Information Systems & Services
000
XXX Xxxxxxx
Xxxxx,
Xxxxx 00000
|
Call
(000) 000-0000 for all inquiries, current members should select
option 3;
lenders that need to set up an accountshould select Option
4.
|
Trans
Union Corporation
000
Xxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
Call
(000) 000-0000 to get the name of the local bureau to contact
about
settingup an account or obtaining other
information.
|
11/20/95
G-2
EXHIBIT
H
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below
as
“Applicable Servicing Criteria,” as identified by a xxxx in the column titled
“Applicable Servicing Criteria:”
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
X
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
H-1
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
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 mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
x
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
X
|
H-2
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
X
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
H-3
EXHIBIT
I
TRANSACTION
PARTIES
Trustee
|
U.S.
Bank, National Association
|
Master
Servicer
|
Aurora
Loan Services LLC
|
Interest
Rate Swap Counterparty
|
N/A
|
Interest
Rate Cap Counterparty
|
N/A
|
Servicer(s)
|
Aurora
Loan Services LLC.
|
Primary
Originator(s)
|
Xxxx
Mortgage, WMC Mortgage Corp. and Xxxxxx Brothers Bank,
FSB
|
Custodian(s)
|
LaSalle
Bank National Association, Xxxxx Fargo Bank, N.A. and U.S. Bank
National
Association
|
Seller
|
Xxxxxx
Brothers Holdings Inc.
|
I-1
EXHIBIT
J
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Compliance Coordinator
(LXS
2007-17H)
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.03 of that certain
servicing agreement, dated as of September 1, 2007 (the “Agreement”), by
and among Xxxxxx Brothers Holdings Inc., Aurora Loan Services
LLC, as
servicer (the “Servicer”) and as master servicer, and acknowledged by U.S.
Bank, N.A., as Trustee, relating to the issuance of the Xxxxxx
XS Trust
Mortgage Pass-Through Certificates, Series
2007-17H
|
[_______],
the undersigned, a duly authorized [_______] of [the Servicer][Name of
Subservicer], does hereby certify the following for the [calendar year][period
beginning on the Cut-off Date and] ending on December 31, 20[__] (the “Reporting
Period”):
1.
|
A
review of the activities of the Servicer during the Reporting
Period and
of its performance under the Agreement for such period has been
made under
my supervision.
|
2.
|
To
the best of my knowledge, based on such review, the Servicer
has fulfilled
all of its obligations under the Agreement in all material respects
throughout such Reporting Period [except as set forth below:
[Identify
failure, nature and status thereof and steps to
remedy]].
|
Certified
By:
Name:
Title:
J-1
EXHIBIT
K
Adjustable
Rate Mortgage Loans Subject to Adjustment
K-1
EXHIBIT
L
Assignment
and Assumption Agreement
L-1