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 a Servicer shall be held in trust
by
such Servicer for the benefit of the Trustee; provided, however, that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller. The Servicer’s possession of any portion of the
Mortgage Loan documents shall be at the will of the Trustee for the sole
purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in
a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Servicing File shall be vested in the Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in
the Trustee and shall be retained and maintained, in trust, by the Servicer
at
the will of the Trustee in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall
be
segregated from the other books and records of the Servicer, which, except
for
collateral documents such as the Mortgage and the Mortgage Note, may be stored
as imaged files 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.
(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 Seller. 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, shall cause to be properly
recorded in each public recording office where such Non-MERS Eligible Mortgage
Loans are recorded each Assignment of Mortgage.
(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. The Trust Fund shall not reimburse the Seller for any
such
reimbursement to the Servicer.
(f)
The
Master Servicer and the Trustee shall have the right to examine the books,
records and other information of the Servicer, with respect to or concerning
this Agreement or the Mortgage Loans, during business hours or at such other
times as may be reasonable under applicable circumstances, upon reasonable
advance written notice 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.
The
Seller, the Master Servicer and the Servicer additionally agree that the
Servicer will 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 Fannie Mae pool,
the
Servicer shall transmit full credit reporting data to each of such credit
repositories in accordance with Fannie 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 Fannie
Mae 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 (i) 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;
(ii) 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; (iv) 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;
(v)
pay the recording costs pursuant to Section 2.02 hereof; and/or (vi) track
such
Mortgages and Assignments of Mortgage to ensure they have been recorded.
The
Servicer shall be entitled to be paid by the Seller fees for the preparation
and
recordation of the Mortgages and Assignments of Mortgage. After the expenses
of
such recording costs pursuant to Section 2.02 hereof shall have been paid
by the
Servicer, the Servicer shall submit to the Seller a reasonably detailed invoice
for reimbursement of recording costs and fees it incurred
hereunder.
(b)
If
applicable, the Servicer shall, in accordance with the relevant provisions
of
the Cranston-Gonzales 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 and except as provided in Section 3.19,
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. Subject
to
the terms of this paragraph, the Servicer may make such modifications as
it
deems to be in the best interests of the Trust Fund on an aggregate basis;
provided, for purposes of clarification, that any such actions taken in
connection therewith may be taken without regard to the Fannie Mae 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,
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,
that
the maturity date of any Mortgage Loan shall not be extended past the latest
Final Scheduled Distribution Date (as defined in the Trust Agreement), which
is
July 2047. 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. If, in connection
with
any modification, a Mortgage Loan has been modified to increase its principal
balance by the amount of any Monthly Advances or any Servicing Advances
previously made by the Servicer on behalf of the related Mortgagor (any such
amount, a “Capitalization Reimbursement Amount”), the Servicer may be reimbursed
for such Capitalization Reimbursement Amount as provided in Section 3.04.
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. Notwithstanding anything contained herein to the contrary,
the
Servicer shall not, without the Trustee’s written consent: (i) initiate any
action suit or proceeding solely under the Trustee’s name without indicating the
Servicer’s representative capacity; or (ii) take any action with the intent to
cause, and that actually causes, 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. Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Servicer shall forward to the Master Servicer copies
of any documents evidencing such assumption, modification, consolidation
or
extension. Notwithstanding anything to the contrary contained in this Servicing
Agreement, the Servicer shall not otherwise make or permit any modification,
waiver or amendment of any term of any Mortgage Loan (including any Prepayment
Penalty Amount due on 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.
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 Fannie Mae Guides, and the Master Servicer’s and Seller’s reliance on the
Servicer.
Section
3.02 Collection
of Mortgage Loan Payments.
Continuously
from the Closing Date or Servicing Transfer Date, as applicable, until the
date
each Mortgage Loan ceases to be subject to this Agreement, the Servicer shall
proceed diligently to collect all payments due under each of the Mortgage
Loans
when the same shall become due and payable 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. 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 in the form of Exhibit B. A copy of such
certification shall be furnished to the Master Servicer within thirty (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 Closing Date 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
Liquidation Proceeds;
(iv)
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);
(v)
all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor;
(vi)
with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Servicer’s own funds, without reimbursement therefor, up to a
maximum amount per month of the Servicing Fee actually received for such
month
for the Mortgage Loans;
(vii)
all
Monthly Advances made by the Servicer pursuant to Section 4.03;
(viii)
any
amounts required to be deposited by the Servicer in connection with the
deductible clause in any blanket hazard insurance policy;
(ix)
any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(x)
any
Prepayment Penalty Amounts; and
(xi)
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.
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 (excluding Capitalization Reimbursement Amounts) 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;
(ix)
to
reimburse itself for unreimbursed Servicing Advances (excluding Capitalization
Reimbursement Amounts) and for any unpaid Aurora 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
pay
itself an amount equal to the Net Simple Interest Excess, if any, for the
related Due Period to the extent not offset by Net Simple Interest
Shortfalls;
(xi)
to
reimburse itself for any unreimbursed Capitalization Reimbursement Amounts
solely from collections on account of principal in the related Mortgage
Pool;
(xii)
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 from or on
account of such Mortgage Loan have been recovered;
(xiii)
to
reimburse itself for any Prepayment Penalty Amounts deposited to the Custodial
Account in error with respect to any Prepayment Period, but only to the extent
that Prepayment Penalty Amounts on deposit in the Custodial Account with
respect
to the related Mortgage Pool equal or exceed such Prepayment Charges deposited
in error;
(xiv)
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
(viii) of this Section 3.04; and
(xv)
to
withdraw funds deposited 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. 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 certification in the form of Exhibit
C. A
copy of such certification shall be furnished to the Master Servicer within
thirty (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 within two (2) Business
Days, 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.
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 the Fannie Mae 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
remove
funds inadvertently placed in the Escrow Account by the Servicer;
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.
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.
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.
The
Servicer shall take all such actions as are necessary to service, maintain
and
administer the LPMI Loans in accordance with the LPMI Policy and to perform
and
enforce the rights of the insured under such LPMI Policy. Except as expressly
set forth herein, the Servicer shall have full authority on behalf of the
Trust
Fund to do anything it reasonably deems appropriate or desirable in connection
with the servicing, maintenance and administration of the LPMI Policy. The
Servicer shall not modify or assume a Mortgage Loan covered by the LPMI Policy
or take any other action with respect to such Mortgage Loan which would result
in non-coverage under the LPMI Policy of any loss which, but for the actions
of
the Servicer, would have been covered thereunder. If the LPMI Insurer fails
to
pay a claim under the LPMI Policy as a result of breach by the Servicer of
its
obligations hereunder or under the LPMI 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 right to reimbursement from the Trust Fund. The Servicer shall cooperate
with the LPMI Insurer and the Master Servicer and shall use its best efforts
to
furnish all reasonable aid, evidence and information in the possession of
the
Servicer to which the Servicer has access with respect to any LPMI
Loan;
provided, however,
notwithstanding anything to the contrary contained in any LPMI Policy, the
Servicer shall not be required to submit any reports to the LPMI Insurer
until a
reporting date that is at least 15 days after the Servicer has received
sufficient loan level information from the Seller, the Master Servicer or
the
LPMI Insurer to appropriately code its servicing system in accordance with
the
LPMI Insurer’s requirements.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Trustee, claims to the insurer under
any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy or LPMI Policy and, in this regard, to take such action as
shall
be necessary to permit recovery under any PMI Policy or LPMI Policy respecting
a
defaulted Mortgage Loan. Any amounts collected by the Servicer under any
PMI
Policy or LPMI Policy shall be deposited in the Custodial Account, subject
to
withdrawal pursuant to Section 3.04.
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 shall be maintained with recognized insurers and shall
be in
such form and amount as would permit the Servicer to be qualified as a Fannie
Mae or Freddie 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 or Trustee a copy of each such
bond and insurance policy if (i) the Master Servicer or Trustee so requests
and
(ii) the Servicer is not an affiliate of Lehman 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).
Section
3.11 Protection
of Accounts.
The
Servicer may transfer the 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. Such transfer shall be made only upon
obtaining the consent of the Master Servicer, which consent shall not be
withheld unreasonably. The Servicer shall give notice to the Master Servicer
of
any change in the location of the Custodial Account no later than 30 days
after
any such transfer is made and deliver to the Master Servicer 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 that 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 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 advances from its own funds 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 advances
from its own funds 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.
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 Fannie Mae 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 Blanket 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 Sections 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 deposited from the Servicer's funds, without reimbursement
therefor.
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 (without
regard to the Fannie Mae Guides). 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; and
(iii)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
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 MERS, as applicable), or in the event (a) the Trustee
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, (b) the Servicer deems it contrary to the Trustee’s
interest to take title in the Trustee’s name or the name of MERS, or (c) the
Trustee 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 the Servicer, who hereby acknowledges that such title is being
taken 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 Trust Fund. If the Servicer determines that
it is
in the best interest of the Trust Fund 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(ix). The Servicer shall
not be responsible for allowing tenants and lessees to occupy a Mortgaged
Property if the eviction of such tenants and lessees is not permitted under
state or local law.
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 (without regard to the Fannie
Mae
Guides) 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 of the proposed discounted payoff or charge off. The
Master Servicer shall be deemed to have approved the discounted payoff or
charge
off of any Mortgage Loan unless the Master Servicer 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 Trustee
or
the Master Servicer 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 Trustee and the Master Servicer 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 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, proceed with foreclosure
or
acceptance of a deed in lieu of foreclosure. In such instance, the Master
Servicer shall be deemed to have approved such foreclosure or acceptance
of a
deed in lieu of foreclosure unless the Master Servicer 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.
Subject
to the approval of the Master Servicer 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 of such
offer in writing which notification shall set forth all material terms of
said
offer (each, a “Notice of Sale”). The Master Servicer shall be deemed to have
approved the sale of any REO Property unless the Master Servicer notifies
the
Servicer in writing, within two (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 the 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 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 and has notified the
Master
Servicer and the Trustee of such extension by providing a copy of the
application and the grant of such extension to the Trustee and the Master
Servicer. If the Servicer has received such an extension, 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 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.
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms
that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any
Trust
REMIC to the imposition of any federal income taxes on the income earned
from
such REO Property, including any taxes imposed by reason of Sections 860F
or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such
taxes.
The
Servicer shall not be responsible for allowing tenants and lessees to occupy
a
Mortgaged Property if the eviction of such tenants and lessees is not permitted
under state or local law.
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 Fannie Mae 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).
If
the
Servicer determines that, in accordance with Accepted Servicing Practices,
it is
in the best interest of the Trust Fund not to proceed with foreclosure or
accept
a deed in lieu of foreclosure, the Servicer shall have the right to do so
with
the consent of the Master Servicer, 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 Mortgaged Property and the Servicer
shall be entitled to reimbursement for all outstanding unreimbursed Monthly
Advances and Servicing Advances from the Custodial Account in accordance
with
Sections 3.04(viii) and (ix).
Section
3.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish to the Master Servicer on or before the Remittance Date 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 the Master Servicer shall reasonably
request.
(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.
(c)
With
respect to all MERS Mortgage Loans serviced hereunder, the Servicer shall
promptly notify MERS as to any transfer of beneficial ownership of 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 3.15 or 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 Penalty Amounts.
Except
as
provided below, the Servicer or any designee of the Servicer shall not waive
any
Prepayment Penalty Amount with respect to any Mortgage Loan. If the Servicer
or
its designee fails to collect a Prepayment Penalty Amount at the time of
the
related prepayment of any Mortgage Loan subject to such Prepayment Penalty
Amount, the Servicer shall pay to the Trust Fund at such time (by deposit
to the
Custodial Account) an amount equal to the amount of the Prepayment Penalty
Amount not collected; provided,
however,
the
Servicer shall not have any obligation to pay the amount of any uncollected
Prepayment Penalty Amount under this Section 3.19 if the failure to collect
such
amount is the result of inaccurate or incomplete information in the Prepayment
Penalty Amount Schedule provided by the Seller and which is included as part
of
the Mortgage Loan Schedule attached hereto as Exhibit A. The Prepayment Penalty
Amounts listed on the Prepayment Penalty Amount Schedule attached hereto
as
Exhibit A are complete, true and accurate and may be relied on by the Servicer
in its calculation of Prepayment Penalty Amounts. If the Prepayment Penalty
Amount data set forth on Exhibit A is incorrect, then the Servicer shall
have no
liability for any loss resulting from calculation of Prepayment Penalty Amounts
using the data provided. Notwithstanding the above, the Servicer or its designee
may waive a Prepayment Penalty Amount without paying to the Trust Fund the
amount of such Prepayment Penalty Amount only if such Prepayment Penalty
Amount
(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 Loan, 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 Penalty Amount and the related Mortgage Loan,
or
(ii) relates to a prepayment charge the collection of which, if collected,
would
be a violation of applicable laws.
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 and the Trustee information
reasonably available to it regarding such security measures upon the reasonable
request of the Master Servicer and the Trustee 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.
ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
Section
4.01 Remittances.
On
each
Remittance Date the Servicer shall remit 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 make pursuant to Section 4.03, 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(vi),
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 (2) 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 on which such payment was due and ending with
the
Business Day on which such payment is made, both inclusive. Such interest
shall
be remitted along with the distribution payable on the next succeeding
Remittance Date. 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 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:
The
Bank
of New York Mellon
New
York,
New York
ABA#:
021-000-018
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LMT 2008-6
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 (i) a monthly remittance advice in the format
set
forth in Exhibit D-1 hereto, a monthly default 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) and a monthly modified loan report in the
format set forth in Exhibit D-3 hereto (or in such other format mutually
agreed
to 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
or the terms of the Trust Agreement. All information relating to the delinquency
status of a Mortgage Loan and included in the reports delivered to the Master
Servicer under this Agreement shall be calculated using the MBA delinquency
method.
Not
later
than the seventeenth day of each month (or, if such seventeenth day is not
a
Business Day, the immediately preceding Business Day), the Servicer shall
furnish to the Master Servicer (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.
In
addition, the Servicer shall, using its reasonable best efforts, on or before
March 1, but in no event later than March 15 of each calendar year, commencing
in March 2009, furnish to each Person who was an owner of the Mortgage Loans
at
any time during such calendar year as required by applicable law or if not
required by applicable law, at the request of such owner as to the aggregate
of
remittances for the applicable portion of such year.
The
Master Servicer may request that the Servicer provide, at the Master Servicer’s
expense, an appraisal or a broker price opinion on any Mortgage Loan which
is 90
days or more delinquent. The Servicer shall use its best efforts to deliver
such
appraisal or broker price opinion to the Master Servicer within 15 calendar
days
after such request.
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
pursuant to any requirements of the Internal Revenue Code as from time to
time
are in force.
(b)
In
addition, no more than 60 days after the end of each calendar year, commencing
December 31, 2008, the Servicer shall provide the Master Servicer with such
information concerning the Mortgage Loans as is necessary for the Trustee
to
prepare the Trust Fund’s federal income tax return as the Master Servicer or the
Trustee may reasonably request from time to time. 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.
(c)
The
Servicer shall promptly notify the Trustee, 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, (ii) if the Servicer shall
become (but only to the extent not previously disclosed to the Trustee, the
Master Servicer and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit I to this Agreement
and (iii) provide to the Master Servicer and the Trustee a description of
such
proceedings, affiliations or relationships.
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
and
the Depositor pursuant to the preceding sentence, the Servicer shall, using
its
best reasonable efforts within five (5) Business Days but in no event later
than
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 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 the aggregate of all Monthly
Advances relating to 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 or which were deferred pursuant to Section 3.01. 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
Mortgage Loan unless the Servicer deems such Monthly Advances to be
unrecoverable; provided that, if requested by the Master Servicer, such
determination that a Monthly Advance is unrecoverable shall be evidenced
by an
Officer’s Certificate of the Servicer delivered to the Master Servicer.
Notwithstanding anything in this Section 4.03 to the contrary, the Servicer’s
obligation to make Monthly Advances on the Mortgage Loans in the aggregate
for a
Remittance Date shall be reduced by any Capitalization Reimbursement Amounts
reimbursed to the Servicer during the related Due Period.
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 to the extent
permitted by Section 3.04 of this Agreement) 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 (if any) 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.
Section
5.02 Report
on Attestation of Compliance with Applicable Servicing Criteria.
The
Servicer shall, using its best reasonable efforts, on or before March
15th
of each
calendar year, commencing in 2009 (or, if not a Business Day, on the immediately
preceding Business Day), 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 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,
using its best reasonable efforts, on March 1st, but in no event later than
March 15th, of each calendar year, commencing in 2009, at its own expense,
furnish to the Seller, the Trustee, the Depositor and 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 Certificates.
(a)
The
Servicer shall, using its best reasonable efforts, on or before March
15th
of each
calendar year, commencing in 2009 (or, if not a Business Day, on the immediately
preceding Business Day), at its own expense, deliver to the Seller, 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 Sarbanes-Oxley Act of 2002, as amended,
(“Sarbanes-Oxley”) is required to be given on behalf of the Trust Fund, a
Servicing Officer shall, using its best reasonable efforts, on or before
March
15th (or if not a Business Day, the immediately preceding Business Day) of
each
calendar year, beginning in 2009, execute and deliver an Officer’s Certificate
to the Master Servicer 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 E hereto.
(c) The
Servicer shall indemnify and hold harmless the Seller, 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 and/or the Depositor, then the Servicer agrees
that
it shall contribute to the amount paid or payable by the Master Servicer
and/or
the Depositor as a result of the losses, claims, damages or liabilities of
the
Master Servicer and/or the Depositor in such proportion as is appropriate
to
reflect the relative fault of the Master Servicer 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.
Section
5.04 Report
on Assessment of Compliance with Applicable Servicing Criteria.
The
Servicer shall, using its best reasonable efforts, on or before March
15th
of each
calendar year, commencing in 2009 (or, if not a Business Day, on the immediately
preceding Business Day), deliver to the Seller, the Trustee, 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
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 applicable
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.
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 laws of the State of Delaware 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;
(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 Fannie Mae or Freddie 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 Fannie Mae or Freddie 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.
(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
or
the Seller 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 Property
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 or the
Master Servicer’s option, assign the Servicer’s rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a successor
Servicer. Such assignment shall be made in accordance with Sections 9.01
and
9.02.
In
addition, the Servicer shall indemnify the Seller, the Trustee and the Master
Servicer (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 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 and the Trustee 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
or the
Master Servicer 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 or the Master Servicer 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 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.
The
Servicer shall immediately notify the Seller, the Depositor, the Master
Servicer, the Trustee, 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 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 Master
Servicer, the Trustee and the Trust Fund now or hereafter existing at law
or in
equity or otherwise. Notwithstanding the foregoing, however, in no event
shall
the Servicer have any liability (1) for any action or omission that is taken
in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Servicer of its duties
and
obligations set forth herein, 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. Notwithstanding
the foregoing paragraph, 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 unreasonably withheld).
The
Servicer hereby agrees to indemnify and hold harmless the Depositor, the
Master
Servicer, the Trustee, their respective officers and directors and each person,
if any, who controls the Trustee, 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 Master Servicer,
the Trustee, 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 Master Servicer, the Trustee, 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 Trustee, the Depositor
or Master Servicer by or on behalf of the Servicer specifically in connection
with this Agreement.
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 be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided, however, that the successor or surviving Person
shall
be an institution (i) having a net worth of not less than $25,000,000, and
(ii)
which is a Fannie Mae or Freddie 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
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 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 (as owner of the servicing rights relating to the Mortgage Loans)
and the
Master Servicer, 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 and the Master Servicer, 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; provided, that in each case,
there
must be delivered to the Master Servicer and the Trustee a letter from each
Rating Agency to the effect that such transfer of servicing or sale or
disposition of assets will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates. Notwithstanding
the foregoing, the Servicer, without the consent of the Seller (as owner
of the
servicing rights relating to the Mortgage Loans), the Master Servicer or
the
Trustee, 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.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer and the Master Servicer 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 Master Servicer and
the
Trustee which Opinion of Counsel shall be in form and substance acceptable
to
the Master Servicer and the Trustee. 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 Trustee and the Master Servicer,
then the Seller, the Trustee or the Master Servicer 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 Fannie Mae or Freddie Mac Seller/Servicer as indicated in writing
and
(ii) represents and warrants that it is in compliance with the laws of each
state as necessary to enable it to perform its obligations under such
subservicing agreement. The Servicer shall not hire or otherwise utilize
the
services of any Subcontractor, and shall not permit any Subservicer to hire
or
otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Servicer as servicer under this Agreement unless the Servicer
complies with the provisions of paragraph (c) of this Section 7.04.
(b)
The
Servicer shall give prior written notice to the Trustee, the Master Servicer
and
the Depositor of the appointment of any Subservicer and shall furnish to
the
Trustee, the Master Servicer and the Depositor 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. 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, 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 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 15th
of each
year, beginning in 2009, the Servicer shall provide written notice to the
Master
Servicer, the Trustee 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
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 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.
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 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.
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
(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 date specified in such section 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 Fannie Mae or Freddie 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.
In
each
and every such case, so long as an event of default shall not have been
remedied, in addition to whatever rights the Seller or the Master Servicer
may
have at law or equity to damages, including injunctive relief and specific
performance, the Seller or the Master Servicer, by notice in writing to the
Servicer, may terminate all the rights and obligations of the Servicer under
this Agreement and in and to the servicing contract established hereby and
the
proceeds thereof.
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
Seller and the Master Servicer. Upon written request from the Seller, the
Servicer shall prepare, execute and deliver to the successor entity designated
by the Seller 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 and the Master Servicer
and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Custodial Account or
Escrow
Account or thereafter received with respect to the Mortgage Loans.
By
a
written notice, the Seller and the Master Servicer may waive any default
by the
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section
8.02 Termination
Without Cause.
This
Agreement shall terminate upon: (i) the later of (a) the distribution of
the
final payment or liquidation proceeds on the last Mortgage Loan to the Master
Servicer (or advances by the Servicer for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and
the
remittance of all funds due hereunder, (ii) mutual consent of the Servicer,
the
Seller (as owner of the servicing rights relating to the Mortgage Loans),
the
Trustee and the Master Servicer in writing or (iii) at the sole discretion
of
the Seller (acting in its capacity as owner of the servicing rights relating
to
the Mortgage Loans). Any such termination pursuant to clause (iii) above
shall
be with 30 days’ prior notice, in writing and delivered to the Trustee, the
Master Servicer and the Servicer by registered mail to the addresses set
forth
in Section 9.03 of this Agreement (in the case of the Servicer) or in the
Trust
Agreement (in the case of the Trustee or the Master Servicer). The Servicer
shall comply with the termination procedures set forth in Sections 7.03,
8.01
and 9.01 hereof. The Master Servicer or the Trustee shall have no right to
terminate the Servicer pursuant to this Section 8.02. In connection with
a
termination by the Seller pursuant to clause (iii) of this Section 8.02,
the
Servicer shall be reimbursed 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. Any 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.
Section
8.03 Termination
for Distressed Mortgage Loans.
(a)
Subject
to the requirements set forth in this Section 8.03, the Seller may terminate
this Agreement with respect to the servicing of those Mortgage Loans that
are
determined to be Distressed Mortgage Loans and in such event servicing of
such
Mortgage Loans shall be transferred to the Special Servicer. The termination
referenced in the preceding sentence, the appointment of a Special Servicer
by
the Seller and the execution of a special servicing agreement between the
Seller
and the Special Servicer shall be subject to the consent of the Master Servicer,
which consent shall not be unreasonably withheld. Any monthly fee paid to
the
Special Servicer in connection with any Mortgage Loan serviced by such Special
Servicer shall not exceed one-twelfth of the product of (a) 0.25% and (b)
the outstanding principal balance of such Mortgage Loan. All unreimbursed
Servicing Fees, Servicing Advances and Monthly Advances owing to the Servicer
relating to such Distressed Mortgage Loans shall be reimbursed and paid to
the
Servicer by the successor Special Servicer upon such transfer to the Special
Servicer, as agreed to by the Servicer and the Special Servicer in accordance
with the Special Servicing Agreement or otherwise.
(b)
All
reasonable costs and expenses incurred in connection with a transfer of
servicing to the Special Servicer including, without limitation, the costs
and
expenses of the Trustee, the Servicer or any other Person in connection with
such transfer including the transfer of the Servicing Files and the other
necessary data to the Special Servicer, shall be paid by the Seller from
its own
funds without reimbursement. The Seller shall be responsible for the delivery
of
all required transfer notices and will send a copy of the transfer notice
to the
Trustee.
(c)
The
Special Servicer shall be an institution (i) having a net worth of not less
than
$25,000,000, and (ii) which is a Fannie Mae- and Freddie Mac-approved servicer
in good standing. Distressed Mortgage Loans transferred hereby shall be serviced
by the Special Servicer pursuant to a special servicing agreement substantially
similar to the form attached hereto as Exhibit K.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01 Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02(ii), the Master
Servicer shall (i) 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(iii),
the
Seller (as owner of the servicing rights relating to the Mortgage Loans)
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, to the extent required
by
the Trust Agreement, the Trustee and such successor, 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, to the extent required by the Trust Agreement, the Trustee,
shall,
if the successor servicer is not at that time a servicer of other Mortgage
Loans
for the Trust Fund, be conditioned upon the receipt by the Master Servicer
and
the Trustee of a letter from each Rating Agency to the effect that such transfer
of servicing will not result in a qualification, withdrawal or downgrade
of the
then-current rating of any of the Certificates. In connection with such
appointment and assumption, the Master Servicer or the Seller, as applicable,
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree, provided,
however, that no such compensation shall be in excess of that permitted the
Servicer under this Agreement. In the event that the Servicer’s duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under
this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 9.01
and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Sections 6.01 and the remedies available to the Master Servicer
and the Seller under Section 6.02 and 6.03, it being understood and agreed
that
the provisions of such Sections 6.01, 6.02 and 6.03 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.
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.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer, the Master Servicer 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 (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 Master Servicer or the Trustee may have against the Servicer
arising out of the Servicer’s actions or failure to act prior to any such
termination or resignation. In addition, in the event any successor servicer
is
appointed pursuant to Section 8.02(iii) of this Agreement, such successor
servicer must satisfy the conditions relating to the transfer of servicing
set
forth in the 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
Depositor, the Trustee, the Seller and the Master Servicer of such appointment
in accordance with the procedures set forth in Section 9.03.
Lehman
Holdings 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 Lehman Holdings. Subject to Sections 2.02 and 3.01(a), the Depositor shall
pay the costs associated with the preparation, delivery and recording of
Assignments of Mortgages.
All
demands, notices and communications hereunder shall be in writing and shall
be
effective: (a) upon delivery by hand or facsimile; (b) one day after being
deposited with a nationally recognized overnight delivery service; (c) three
days after being deposited in the United
States mail, first-class, postage prepaid, registered or certified, return
receipt requested, in each case addressed to such party as follows (or to
such
other address as hereafter may be designated in writing by such Party to
the
other Party):
Lehman
Brothers Holdings Inc.
745
Seventh Avenue, 8th Floor
Attention:
Manager, Contract Finance (LMT 2008-6)
Telephone:
(212) 526-7000
Facsimile:
(212) 526-8950
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attention:
Jim Greene (LMT 2008-6)
Telephone:
(720) 945-4849
Facsimile:
(720) 945-5735
with
a
copy to:
Aurora
Loan Services LLC
2617
College Park
Attention:
Manager, Loan Administration (LMT 2008-6)
Telephone
No.: (308) 220-2000
Telecopier
No.: (308) 632-4287
(iii) if
to the
Master Servicer:
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attention:
Michele Olds, Master Servicing (LMT 2008-6)
Telephone:
(720) 945-4657
Facsimile:
(720) 945-3968
(iv) if
to the
Trust Fund or the Trustee:
Wells
Fargo Bank, N.A.
P.O.
Box 98
Attention:
Client Services Manager, LMT 2008-6
(or
in the case of overnight deliveries,
Wells
Fargo Bank, N.A.
9062
Old Annapolis Road
Attention:
Client Services Manager, LMT 2008-6)
Telephone:
(410) 884-2066
Facsimile:
(410) 715-2380
Structured
Asset Securities Corporation
745
Seventh Avenue
8th
Floor
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 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 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, mass mailings based on commercially acquired mailing lists and
newspaper, radio and television advertisements 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.
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 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.
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 and the Master Servicer and their respective
successors and assigns. This Agreement shall not be assigned, pledged or
hypothecated by the Servicer to a third party except in accordance with Section
7.03.
Section
9.11 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, 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 (but not the obligations, except
as set
forth in the Trust Agreement) of the Seller under this Agreement (and in
performing hereunder, the Trustee shall have all of the rights, protections
and
immunities afforded to it under the Trust 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(iii).
The
Seller shall have the right, upon notice to but without the consent of the
Servicer or the Trustee, 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 the Seller’s rights arising pursuant
to Section 8.02(iii).
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.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
9.14 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 and the Depositor receive the benefit of the provisions
of this Agreement as intended third party beneficiaries of this Agreement
to the
extent of such provisions. The Servicer shall have the same obligations to
the
Trustee and the Depositor as if they were parties to this Agreement, and
the
Trustee (acting through the Master Servicer) and the Depositor shall have
the
same rights and remedies to enforce the provisions of this Agreement as if
they
were parties to this Agreement. The Servicer shall only take direction from
the
Master Servicer (if direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement. 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.
Section
9.15 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c)
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e)
the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f)
the
term
“include” or “including” shall mean by reason of enumeration.
Section
9.16 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) 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
9.17 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.
This
Agreement may be amended from time to time by the mutual written agreement
signed by the Master Servicer, the Seller and the Servicer,
and
with the consent of the Trustee;
provided
that the party requesting such amendment shall, at its own expense, provide
the
Trustee, 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; and provided,
further,
that prior to any amendment to the loan modification provisions in Section
3.01
notice of such amendment shall be provided to each Rating Agency. Any such
amendment shall be deemed not to adversely affect in any material respect
any
the interest of the Certificateholders in the Mortgage Loans, if the Trustee
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 any Opinion of Counsel requested
by the
Trustee, 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 and the Master
Servicer 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 SEC Rules.
Section
9.19 Trustee
Capacity.
It
is
expressly understood and agreed by the parties hereto that insofar as
this Agreement is executed by Wells Fargo Bank, N.A. (i) it is
executed and delivered by such party, not in its individual capacity but
solely
as Trustee under the Trust Agreement in the exercise of the powers and
authority conferred to and vested in it thereunder, (ii) each of the
representations, undertakings and agreements herein made on behalf of
the Trust Fund is made and intended not as personal representations,
undertakings and agreements of the Trustee but is made and intended solely
for
the purpose of binding only the Trust Fund, and (iii) under
no circumstances shall the Trustee in its individual capacity be
personally liable for the payment of any indebtedness or expenses or be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken under this Agreement or any related
document.
Section
9.20 Mortgage
Loan-Level Reports.
The
Servicer shall be deemed to represent and warrant solely to S&P, at the time
the information contained in the mortgage loan-level reports delivered to
the
Master Servicer pursuant to Section 4.02 above, the information set forth
in
such reports are true and correct in all material respects. Upon discovery
by
the Servicer of a material inaccuracy in such mortgage loan-level reports,
the
Servicer shall give prompt written notice to the Master Servicer and to the
Seller, and (i) the Seller shall give prompt written notice to S&P and (ii)
the Servicer shall deliver corrected mortgage loan-level reports to the Master
Servicer. Notwithstanding the foregoing, the Servicer shall have no liability
to
S&P or any other Person for any claims, damages, liabilities, expenses or
any other losses of any kind arising out of, or relating to, the inaccuracy
of
any of the information contained in such reports or a breach of the
representation and warranty set forth in this Section 9.20.
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.
LEHMAN
BROTHERS HOLDINGS INC.,
as
Seller
Name:
Michael Hitzmann
Title:
Authorized Signatory
AURORA
LOAN SERVICES LLC,
as
Servicer
Name:
James L. Greene
Title:
Vice President
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
Name:
Diane
Moormann
Title:
Vice President
Acknowledged
By:
WELLS
FARGO BANK, N.A.,
not
in
its individual capacity but solely as Trustee
Name:
Carla S Walker
Title:
Vice President
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Penalty Schedule)
[To
be
retained in a separate closing binder entitled “LMT 2008-6 Mortgage Loan
Schedules” at McKee Nelson LLP]
EXHIBIT
B
CUSTODIAL
ACCOUNT CERTIFICATION
_______
__, 200_
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attn:
Michele Olds - Master Servicing (LMT 2008-6)
As
servicer under the Servicing Agreement, dated as of August 1, 2008 among
Aurora
Loan Services LLC, as Servicer, Lehman 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 Lehman Mortgage Trust,
Series
2008-6.”
All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Servicer.
Account
Number: _______________
Address
of office or branch of the firm at which Account is maintained:
AURORA
LOAN SERVICES LLC
EXHIBIT
C
ESCROW
ACCOUNT CERTIFICATION
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attn:
Michele Olds - Master Servicing (LMT 2008-6)
As
servicer under the Servicing Agreement, dated as of August 1, 2008 among
Aurora
Loan Services LLC, as Servicer, Lehman 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 Lehman Mortgage Trust,
Series
2008-6 and various mortgagors.”
All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Servicer.
Account
Number: _______________
Address
of office or branch of the firm at which Account is maintained:
EXHIBIT
D-1
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
TRAIL 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 AMOUNT, .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 AMOUNT, .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 CHARGEOFF
|
|
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
|
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
|
|
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
|
|
EXHIBIT
D-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
| |
|
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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
NOE submitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
|
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.
|
|
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.
|
|
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)
|
|
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.
|
|
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
|
|
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
|
EXHIBIT
D-3
FORM
OF
MODIFIED LOAN REPORT
|
New#
|
Name
|
Description
|
|
1
|
Servicer
Loan Number
|
Your
Loan Number
|
|
2
|
SBO
Loan Number
|
Aurora
Master Servicer Loan Number
|
|
3
|
Step
Rate Indicator
|
This
indicator designates modifications where the interest rate is scheduled
to
change in the future, but the rate change is not tied to an Index.
Enter Y
if the modification will have stepped rate changes and enter N
if the loan
will have either a Fixed rate or an Adjustable Rate tied to an
Index. (For
example, the modification is changing the rate from ARM to fixed.
The
first two years the rate will be 5% and then the rate will be 7%
until
maturity.) IF YOU ARE ENTERING A "Y" IN THIS FIELD, A HARD COPY
OF THE
MODIFICATION DOCUMENTS MUST BE SENT AND IT IS NOT NECESSARY TO
COMPLETE
ANY ADDITIONAL INFORMATION ON THE TEMPLATE.
|
|
4
|
Modification
Date
|
Date
on the Modification Document or Letter to Borrower
|
|
5
|
Modified
Interest Rate Effective Date
|
The
date the new Interest Rate is in effect. (This should be based
on the Due
Day of the loan. If payments are due on the 1st, the new Interest
Rate
would be in effect as of the 1st of a given month.) If the Interest
Rate
was not changed, enter the Interest Paid To Date of the
loan.
|
|
6
|
Balance
After Modification
|
Unpaid
Principal Balance of the loan including the effects of Modification
and
Capitalization.
|
|
7
|
Modified
Payment Amount Effective Date
|
The
date the new Payment Amount is in effect. (This should be based
on the Due
Day of the loan. If payments are due on the 1st, the new Payment
Amount
would be in effect as of the payment due on the 1st of a given
month.) If
the Payment Amount is not changed, enter the Next Due Date of the
loan.
|
|
8
|
Ending
Actual Balance
|
Actual
outstanding principal balance as of the monthly cutoff
date
|
|
9
|
Ending
Scheduled Balance
|
Scheduled
principal balance as of the monthly cutoff date
|
|
10
|
Capitalized
Amount
|
If
the Unpaid Principal Balance was increased due to capitalization,
enter
the Total Amount of any capitalization. This would include any
capitalized
interest, advances and fees. (Balance Before Modification + Capitalized
Amount = Balance After Modification)
|
|
11
|
Interest
Rate Before Modification
|
The
existing Interest Rate on the loan prior to this modification.
(Example:
5% entered as .05)
|
|
12
|
Interest
Rate After Modification
|
If
Interest Rate was changed, enter new Interest Rate. If Rate was
unchanged,
enter existing Interest Rate. (Example: 5% entered as
.05)
|
|
13
|
Post-Modification
Margin
|
Margin
as of the Modification Effective Payment Date (Example: 5% entered
as
.05)
|
|
14
|
Post-Modification
Periodic Interest Caps
|
Maximum
interest rate which can be charged in an adjustment period, as
of the
Modification Effective Payment Date (Example: 1% entered as
.01)
|
|
15
|
Post-Modification
Lifetime Interest Cap
|
Maximum
interest rate which can be charged over the life of the loan as
of the
Modification Effective Payment Date--Ceiling (Example: 15% entered
as
.15)
|
|
16
|
Payment
Amount Before Modification
|
The
current Principal and Interest Payment on the loan prior to this
modification.
|
|
17
|
Payment
Amount After Modification
|
If
Principal and Interest Payment was changed, enter new Principal
and
Interest Payment Amount. If Principal and Interest Payment was
unchanged,
enter current Principal and Interest Payment.
|
|
18
|
Pre-Modification
Maturity Date
|
Original
maturity date of the loan. (If there is more than one modification
over
the life of the loan, subsequent "pre-modification maturity date"
would
reflect the value immediately preceding the most recent Modification
Effective Payment Date reported.)
|
|
19
|
Modified
Maturity Date
|
If
Maturity Date was modified, enter new Maturity Date. If Maturity
Date was
unchanged, enter Pre-Modification Maturity Date.
|
|
20
|
Pre-Modification
Interest Reset Period
|
Original
duration of the Interest Reset Period of the loan. The number of
months
between rate changes.
|
|
21
|
Post-Modification
Interest Reset Period
|
Duration
of the Interest Reset Period of the loan as of the Modification
Effective
Payment Date. The number of months between rate changes after the
modification. (If the Reset Period is unchanged, enter the Original
Reset
Period.)
|
|
22
|
Rate
Change Date Before Modification
|
The
Next Rate Change Date prior to this Modification.
|
|
23
|
Rate
Change Date After Modification
|
The
new Next Rate Change Date, if it is being extended in this Modification.
Otherwise, enter the existing Next Rate Change Date.
|
|
24
|
Fixed
to ARM (Y/N)
|
Change
in loan status from Fixed rate to ARM.
|
|
25
|
ARM
to Fixed (Y/N)
|
Change
in loan status from ARM to Fixed rate.
|
|
26
|
IO
to Fully Amortizing (Y/N)
|
Change
in loan status from IO to fully amortizing.
|
|
27
|
Fully
Amortizing to IO (Y/N)
|
Change
in loan status from fully amortizing to IO.
|
|
28
|
Pre-Modification
IO Term
|
Original
term of IO period prior to the Modification. If not an IO loan,
enter
0.
|
|
29
|
Post
Modification IO Term
|
If
IO term is being extended in the Modification, enter the Original
IO Term
plus the IO Extension term. (Example: Original IO Term of 36 months
being
extended for one additional year, enter
48)
|
|
30
|
Deferred
Principal
|
FIXED
AMOUNT OF PRINCIPAL DUE AT MATURITY (NOT CAPITALIZED, NOT ACCRUING
INTEREST)
|
|
31
|
Deferred
Interest
|
FIXED
AMOUNT OF INTEREST DUE AT MATURITY (NOT CAPITALIZED, NOT ACCRUING
INTEREST)
|
|
32
|
Principal
Forgiven
|
If
principal forgiven, enter the Total Amount or 0
|
|
33
|
Interest
Forgiven
|
If
interest forgiven, enter the Total Amount or 0
|
|
34
|
Payment
Change Date Before Modification
|
The
Next Payment Change Date prior to this Modification.
|
|
35
|
Payment
Change Date After Modification
|
The
new Next Payment Change Date, if it is being extended in this
Modification. Otherwise, enter the existing Next Payment Change
Date.
|
|
36
|
Pre-Modification
Margin
|
The
existing Margin on the loan prior to this modification (Example:
5%
entered as .05)
|
EXHIBIT
E
[Date]
FORM
OF
ANNUAL CERTIFICATION
| |
Re:
|
The
Servicing Agreement dated as of August 1, 2008 (the “Agreement”), among
Lehman Brothers Holdings Inc. and Aurora Loan Services LLC (the
“Servicer,” in such capacity and the “Master Servicer,” in such capacity),
and acknowledged by Wells Fargo Bank, N.A., 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
(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:
EXHIBIT
F
Assignment
and Assumption Agreement
EXHIBIT
G
FANNIE
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 Fannie Mae regional
office if they have any questions about this expanded reporting
requirement.
Robert
J.
Engelstad
Senior
Vice President - Mortgage and Lender Standards
11/20/95
FANNIE
MAE GUIDE 95-19
ATTACHMENT
1
ANNOUNCEMENT
Major
Credit Repositories
A
"full-file" status report for each mortgage serviced for Fannie 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.
|
Call
(713) 595-1190, either extension
|
|
950
Threadneedle Street, Suite 200
|
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
(800)
685-5000 and select the customer assistance option.
|
| |
|
|
TRW
Information Systems & Services
|
Call
(800) 831-5614 for all inquiries,
|
|
601
TRW Parkway
|
current
members should select option 3;
|
|
|
lenders
that need to set up an account
|
|
|
should
select Option 4.
|
| |
|
|
Trans
Union Corporation
|
Call
(312) 258-1818 to get the name of
|
|
555
West Adams
|
the
local bureau to contact about setting
|
|
|
up
an account or obtaining other
|
|
information.
|
|
11/20/95
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 mark 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
|
|
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
|
|
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.
|
|
|
|
|
|
EXHIBIT
I
TRANSACTION
PARTIES
Depositor: Structured
Asset Securities Corporation
Trustee:
Wells
Fargo Bank, N.A.
Securities
Administrator: N/A
Master
Servicer: Aurora
Loan Services LLC
Credit
Risk Manager: N/A
PMI
Insurer(s): N/A
Interest
Rate Swap Counterparty: N/A
Interest
Rate Cap Counterparty:
Lehman
Brothers Special Financing, Inc.
Servicer(s):
Aurora Loan Services LLC, IndyMac Federal Bank, FSB and Countrywide Home
Loans
Servicing, LP.
Primary
Originator(s): Lehman Brothers Bank, FSB.
Custodian(s):
LaSalle Bank National Association and U.S. Bank National Association.
Sponsor
and Seller: Lehman Brothers Holdings, Inc.
EXHIBIT
J
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
10350
Park Meadows Drive
Attention:
Michele Olds
(LMT
2008-6)
Structured
Asset Securities Corporation
745
Seventh Avenue, 8th Floor
Lehman
Brothers Holdings Inc.
745
Seventh Avenue, 8th Floor
Wells
Fargo Bank, N.A.
9062
Old Annapolis Road
Attention:
Client Services Manager, LMT 2008-6
|
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.03 of that certain
servicing agreement dated as of August 1, 2008 (the “Agreement”), among
Lehman Brothers Holdings Inc., Aurora Loan Services LLC, as servicer
(the
“Servicer”) and as master servicer, and acknowledged by Wells Fargo Bank,
N.A., as Trustee, relating to the issuance of the Lehman Mortgage
Trust
Mortgage Pass-Through Certificates, Series
2008-6
|
[_______],
the undersigned, a duly authorized [_______] of [the Servicer][Name of
Subservicer], does hereby certify the following for the [calendar year][identify
other period] ending on December 31, 20[__]:
|
1.
|
A
review of the activities of the Servicer during the preceding calendar
year (or portion thereof) and of its performance under the Agreement
for
such period has been made under my
supervision.
|
|
2.
|
To
the best of my knowledge, based on such review, the Servicer has
fulfilled
all of its obligations under the Agreement in all material respects
throughout such year [except as set forth below: [Identify failure,
nature and status thereof, and steps to remedy] ].
|
Certified
By:
______________________________
Name:
Title:
EXHIBIT
K
FORM
OF
SPECIAL SERVICING AGREEMENT
[SPECIAL
SERVICER],
as
Special Servicer,
LEHMAN
BROTHERS HOLDINGS, INC.,
as
Seller
and
Aurora
Loan Services LLC,
as
Master
Servicer
_____________________________
Lehman
Mortgage Trust,
Mortgage
Pass-Through Certificates, Series [SERIES NO.]
SPECIAL
SERVICING AGREEMENT
Dated
as
of [DATE]
_____________________________
TABLE
OF CONTENTS
Page
|
ARTICLE
I.
DEFINITIONS
|
| |
|
|
|
ARTICLE
II.
SELLER’S
ENGAGEMENT OF SPECIAL SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
|
| |
|
|
|
Section
2.01
|
Contract
for Servicing; Transfer of Distressed Mortgage Loans.
|
12
|
|
Section
2.02
|
Delivery
of Transferred Mortgage Loan Files; Reimbursement of
Advances.
|
14
|
|
Section
2.03
|
Possession
of Transferred Mortgage Loan Files.
|
15
|
|
Section
2.04
|
Books
and Records.
|
16
|
| |
|
ARTICLE
III.
SERVICING
OF THE TRANSFERRED MORTGAGE LOANS
|
| |
|
|
|
Section
3.01
|
Special
Servicer to Service.
|
16
|
|
Section
3.02
|
Collection
and Liquidation of Transferred Mortgage Loans.
|
18
|
|
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.
|
22
|
|
Section
3.06
|
Permitted
Withdrawals From Escrow Account.
|
22
|
|
Section
3.07
|
Notification
of Adjustments.
|
23
|
|
Section
3.08
|
Completion
and Recordation of Assignments of Mortgage.
|
24
|
|
Section
3.09
|
Payment
of Taxes, Insurance and Other Charges.
|
24
|
|
Section
3.10
|
Protection
of Accounts.
|
25
|
|
Section
3.11
|
Maintenance
of Hazard Insurance.
|
25
|
|
Section
3.12
|
Maintenance
of Mortgage Impairment Insurance.
|
27
|
|
Section
3.13
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
28
|
|
Section
3.14
|
Inspections.
|
28
|
|
Section
3.15
|
Restoration
of Mortgaged Property.
|
28
|
|
Section
3.16
|
Maintenance
of PMI and/or LPMI Policy; Claims.
|
29
|
|
Section
3.17
|
Title,
Management and Disposition of REO Property.
|
31
|
|
Section
3.18
|
Real
Estate Owned Reports.
|
33
|
|
Section
3.19
|
Liquidation
Reports.
|
33
|
|
Section
3.20
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
33
|
|
Section
3.21
|
Prepayment
Charges.
|
33
|
|
Section
3.22
|
Compliance
with Safeguarding Customer Information Requirements.
|
34
|
|
Section
3.23
|
Reserved.
|
34
|
|
Section
3.24
|
Advance
Facility
|
34
|
|
Section
3.25
|
MERS.
|
37
|
|
ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
|
| |
|
|
|
Section
4.01
|
Remittances.
|
37
|
|
Section
4.02
|
Statements
to Master Servicer and Depositor.
|
38
|
|
Section
4.03
|
Monthly
Advances by Special Servicer.
|
39
|
|
Section
4.04
|
Due
Dates Other Than the First of the Month.
|
39
|
|
|
|
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
|
| |
|
|
|
Section
5.01
|
Transfers
of Mortgaged Property.
|
40
|
|
Section
5.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
41
|
|
Section
5.03
|
Servicing
Compensation.
|
41
|
|
Section
5.04
|
Report
on Attestation of Compliance with Applicable Servicing
Criteria.
|
42
|
|
Section
5.05
|
Annual
Officer’s Certificate.
|
42
|
|
Section
5.06
|
Report
on Assessment of Compliance with Applicable Servicing
Criteria.
|
43
|
|
Section
5.07
|
Inspection.
|
43
|
| |
|
|
|
ARTICLE
VI.
Representations,
Warranties and Agreements
|
| |
|
|
|
Section
6.01
|
Representations,
Warranties and Agreements of the Special Servicer.
|
43
|
|
Section
6.02
|
Remedies
for Breach of Representations and Warranties of the Special
Servicer.
|
45
|
|
Section
6.03
|
Additional
Indemnification by the Special Servicer; Third Party
Claims.
|
46
|
|
Section
6.04
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
47
|
|
Section
6.05
|
Reporting
Requirements of the Commission and Indemnification.
|
47
|
| |
|
ARTICLE
VII.
the
Special Servicer
|
| |
|
|
|
Section
7.01
|
Merger
or Consolidation of the Special Servicer.
|
48
|
|
Section
7.02
|
Limitation
on Liability of the Special Servicer and Others.
|
48
|
|
Section
7.03
|
Limitation
on Resignation and Assignment by the Special Servicer.
|
49
|
|
Section
7.04
|
Subservicing
Agreements and Successor Subservicer.
|
53
|
| |
|
|
| |
|
|
| |
|
|
|
ARTICLE
VIII.
TERMINATION
|
| |
|
|
|
Section
8.01
|
Termination
for Cause.
|
50
|
|
Section
8.02
|
Termination
Without Cause.
|
52
|
| |
|
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
|
| |
|
|
|
Section
9.01
|
Successor
to the Special Servicer.
|
52
|
|
Section
9.02
|
Costs.
|
54
|
|
Section
9.03
|
Protection
of Confidential Information.
|
54
|
|
Section
9.04
|
Notices.
|
54
|
|
Section
9.05
|
Severability
Clause.
|
56
|
|
Section
9.06
|
No
Personal Solicitation.
|
56
|
|
Section
9.07
|
Counterparts.
|
56
|
|
Section
9.08
|
Place
of Delivery and Governing Law.
|
57
|
|
Section
9.09
|
Further
Agreements.
|
57
|
|
Section
9.10
|
Intention
of the Parties.
|
57
|
|
Section
9.11
|
Successors
and Assigns; Assignment of Special Servicing Agreement.
|
57
|
|
Section
9.12
|
Assignment
by the Seller.
|
57
|
|
Section
9.13
|
Amendment.
|
57
|
|
Section
9.14
|
Waivers.
|
58
|
|
Section
9.15
|
Exhibits.
|
58
|
|
Section
9.16
|
Intended
Third Party Beneficiaries.
|
58
|
|
Section
9.17
|
General
Interpretive Principles.
|
58
|
|
Section
9.18
|
Reproduction
of Documents.
|
59
|
EXHIBITS
|
EXHIBIT
A
|
FORM
OF NOTICE OF TRANSFER
|
|
EXHIBIT
B
|
CUSTODIAL
ACCOUNT CERTIFICATION NOTICE
|
|
EXHIBIT
C
|
ESCROW
ACCOUNT CERTIFICATION NOTICE
|
|
EXHIBIT
D-1
|
FORM
OF MONTHLY REMITTANCE ADVICE
|
|
EXHIBIT
D-2
|
STANDARD
MONTHLY DEFAULTED LOAN REPORT
|
|
EXHIBIT
E
|
[SERIES
NO.] TRUST AGREEMENT
|
|
EXHIBIT
F
|
RESERVED
|
|
EXHIBIT
G
|
FORM
OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR, THE TRUSTEE AND
THE
MASTER SERVICER BY THE SPECIAL SERVICER
|
|
EXHIBIT
H
|
|
|
EXHIBIT
I
|
TRANSFER
INSTRUCTIONS
|
|
EXHIBIT
J
|
FORM
OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON
ASSESSMENT OF COMPLIANCE
|
|
EXHIBIT
K
|
TRANSACTION
PARTIES
|
|
EXHIBIT
L
|
FORM
OF ANNUAL OFFICER’S CERTIFICATE
|
This
SPECIAL
SERVICING AGREEMENT
(this
“Agreement”), entered into as of the [___] day of [_______], 200[_], by and
among LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation (the “Seller”),
[SPECIAL SERVICER], a [FORM OF ENTITY] (the “Special Servicer” or “[SPECIAL
SERVICER]”) and AURORA
LOAN SERVICES LLC,
as
master servicer (the “Master Servicer”), and acknowledged by [TRUSTEE], as
trustee (the “Trustee”) STRUCTURED ASSET SECURITIES CORPORATION, as Depositor
(the “Depositor”) under the Trust Agreement (as defined herein), recites and
provides as follows:
WITNESSETH:
WHEREAS,
the Seller has conveyed certain mortgage loans (the “Mortgage Loans”) on a
servicing-retained basis to Structured Asset Securities Corporation (the
“Depositor”), which in turn has conveyed the mortgage loans to [TRUSTEE] (the
“Trustee”) under a trust agreement dated as of [AGREEDATE] (the “Trust
Agreement”), among the Trustee, the Depositor and the Master
Servicer;
WHEREAS,
the Mortgage Loans are being serviced by various servicers on behalf of the
Trust Fund, including, but not limited to each Prior Servicer;
WHEREAS,
the Seller desires to terminate the servicing responsibilities of certain
Prior
Servicers with respect to each Mortgage Loan that becomes a Distressed Mortgage
Loan (as defined below) and transfer such servicing responsibilities to the
Special Servicer;
WHEREAS,
the Seller desires that the Special Servicer service the Transferred Mortgage
Loans (as defined below) pursuant to this Agreement, and the Special Servicer
has agreed to do so, subject to the right of the Seller and of the Master
Servicer to terminate the rights and obligations of the Special Servicer
pursuant to the terms hereof and to the other conditions set forth
herein;
WHEREAS,
the Master Servicer shall be obligated under the Trust Agreement, among other
things, to supervise the servicing of the Transferred Mortgage Loans on behalf
of the Trustee, and shall have the right, under certain circumstances, to
terminate the rights and obligations of the Special Servicer under this Special
Servicing Agreement upon the occurrence and continuance of an Event of Default
as provided herein;
WHEREAS,
the Seller and the Special Servicer acknowledge and agree that the Seller
will
assign all of its rights and delegate all of its obligations hereunder
(excluding the Seller’s rights to terminate the rights and obligations of the
Special Servicer hereunder) to the Trustee, and that each reference herein
to
the Seller is intended, unless otherwise specified, to mean the Seller or
the
Trustee, as assignee, whichever is the owner of the Transferred Mortgage
Loans
from time to time;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller, the Master Servicer and the Special Servicer
hereby agree as follows:
ARTICLE
I.
Definitions
The
following terms are defined as follows:
Accepted
Servicing Practices:
With
respect to any Transferred Mortgage Loan, those mortgage servicing practices
(i) of
prudent mortgage lending institutions which service mortgage loans of the
same
type as such Transferred 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 Fannie Mae Guides.
Agreement:
This
Special Servicing Agreement and all amendments hereof and supplements
hereto.
Ancillary
Income:
All
income derived from the Transferred Mortgage Loans, excluding the Servicing
Fee
and Prepayment Charges attributable to the Transferred Mortgage Loans, including
but not limited to, 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. The Special Servicer shall retain all Ancillary Income to the extent
not required to be deposited into the Custodial Account.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage
to
the party indicated therein or if the related Mortgage has been recorded
in the
name of MERS or its designee, such actions as are necessary to cause the
Trustee
or its designee to be shown as the owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
Aurora:
Aurora
Loan Services LLC, in its capacity as a Prior Servicer.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the States of New York, Texas, Minnesota and Colorado
are authorized or obligated by law or executive order to be closed.
Capitalization
Reimbursement Amount:
As
defined in Section 3.01.
Certificateholder:
The
meaning set forth in the Trust Agreement.
Certificates:
Any or
all of the Certificates issued pursuant to the Trust Agreement.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Transferred Mortgage Loan
documents.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
3.03.
Custodial
Agreement:
Each
custodial agreement relating to the custody of certain of the Transferred
Mortgage Loans, between the applicable Custodian and the Trustee, as
acknowledged by the related Special Servicer, dated as of
[AGREEDATE].
Custodian:
[CUSTODIAN]
Cut-off
Date:
[________].
DBRS:
DBRS,
Inc. or any successor in interest.
Depositor:
Structured Asset Securities Corporation, a Delaware 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.
Distressed
Mortgage Loan:
As of
any date of determination, any Mortgage Loan that is delinquent in payment
for a
period of ninety (90) days or more, without giving effect to any grace period
permitted by the related Mortgage Loan, or for which the related Prior Servicer
or Trustee has accepted a deed in lieu of foreclosure. A Mortgage Loan that
has
a due date of the first day of a month will be considered a Distressed Mortgage
Loan on the last day of the second following month if the payment that was
due
on the first day of the month remains unpaid, regardless of the number of
days
in the month (e.g. a Mortgage Loan for which the next Due Date is October
1st
would be
considered a Distressed Mortgage Loan as of December 31st
if such
loan remains unpaid as of such date).
Distribution
Date:
Commencing in [_______], 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 calendar month on which the Monthly Payment is due on a Transferred
Mortgage Loan, exclusive of any days of grace. Pursuant to Section 4.04,
with
respect to the Transferred Mortgage Loans for which payment from the Mortgagor
is due on a day other than the first day of the month, such Transferred 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, or any other account acceptable to the Rating Agencies, as
evidenced in writing.
Eligible
Institution:
Any of
the following, provided that in the event of the loss of the required rating
set
forth in clause (i)(A), clause (i)(B) or clause (iii) below, the accounts
shall
be transferred promptly (and in any case within not more than 30 calendar
days)
to accounts which have the required rating:
(i)
an
institution whose:
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(A)
|
commercial
paper, short-term debt obligations, or other short-term deposits
are rated
at least “A-1+” by S&P and “P-1” by Moody’s or, in the event that
there are no short-term ratings with respect to such institution,
the
long-term unsecured debt obligations are rated at least “AA-“ by S&P
and “Aaa” by Moody’s (the foregoing ratings being applicable only if such
rating agency is a Rating Agency), if the amounts on deposit are
to be
held in the account for no more than 365 days and are not intended
for use
as credit enhancement; or
|
| |
(B)
|
commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P and “P-1” by Moody’s or, in
the event that there are no short-term ratings with respect to
such
institution, the long-term unsecured debt obligations are rated
at least
“BBB+” by S&P and “A2” by Moody’s (the foregoing ratings being
applicable only if such ratings agency is a Rating Agency); provided
that
in the event that the amounts on deposit in the applicable account
include
funds unrelated to the Mortgage Loans, the amounts on deposit shall
be
held in the account for no more than 30 days and shall not be intended
for
use as credit enhancement.
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(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
(iii)
Lehman
Brothers Bank, FSB, provided that (A) the commercial paper, short-term debt
obligations, demand deposits, or other short-term deposits of such institution
are rated at least “A-2” by S&P or, in the event that there are no
short-term ratings with respect to such institution, the long-term unsecured
debt obligations of such institution are rated at least “BBB+” by S&P and
(B) solely in the event that the amounts on deposit in the applicable account
include funds unrelated to the Mortgage Loans, the amounts on deposit therein
shall be held in the account for no more than 30 days and shall not be intended
for use as credit enhancement.
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 and 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
Ginnie Mae, Fannie Mae or Freddie 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 outstanding principal balance of the
Transferred Mortgage Loans at any Determination Date 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;
(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;
(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 would not adversely affect
the
then current rating by any Rating Agency then rating the Certificates 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.
Environmental
Problem Property:
A
Mortgaged Property or REO Property that is in violation of any environmental
law, rule or regulation.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Special Servicer in accordance
with Section 3.13.
Escrow
Account:
The
separate account or accounts operated and maintained pursuant to Section
3.05.
Escrow
Payments:
With
respect to any Transferred 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.
Fannie
Mae:
Fannie
Mae or any successor thereto.
Fannie
Mae Guides:
The
Fannie Mae Selling Guide and the Fannie Mae Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Special Servicer in accordance with
Section 3.13.
Fitch: Fitch,
Inc. or any successor in interest.
Freddie
Mac:
Freddie
Mac or any successor thereto.
Holder:
The
meaning set forth in the Trust Agreement.
Insurance
Proceeds:
With
respect to each Transferred Mortgage Loan, proceeds of insurance policies
insuring the Transferred Mortgage Loan or the related Mortgaged Property,
including the proceeds of any hazard or flood insurance policy, LPMI Policy
or
PMI Policy.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Transferred Mortgage
Loan, whether through the sale or assignment of such Transferred Mortgage
Loan,
trustee’s sale, foreclosure sale or otherwise, or the sale of the related REO
Property, if the Mortgaged Property is acquired in satisfaction of the
Transferred Mortgage Loan.
LPMI
Loan:
A
Transferred Mortgage Loan with a LPMI Policy.
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
pursuant to which the related premium is to be paid by the Special Servicer
or
the Master Servicer from payments of interest made by the Mortgagor in an
amount
as is set forth in the related Transferred Mortgage Loan Schedule. An LPMI
Policy shall also include any policy of primary mortgage guaranty insurance
issued by a Qualified Insurer that is purchased by the Seller with respect
to
some or all of the Transferred Mortgage Loans.
LPMI
Fee:
With
respect to each LPMI Loan, the portion of the Mortgage Interest Rate as set
forth on the related Transferred 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.
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 Transferred Mortgage Loan and any Due Period,
the
maximum Mortgage Interest Rate that may be charged the borrower under the
related Mortgage Note.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Transferred Mortgage Loan:
Any
Transferred Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
Monthly
Advance:
With
respect to each Remittance Date and each Transferred Mortgage Loan, an amount
equal to the Monthly Payment (with the interest portion of such Monthly Payment
adjusted to the Transferred Mortgage Loan Remittance Rate) that was due on
the
Transferred Mortgage Loan on the Due Date in the related Due Period, and
that
(i) was delinquent at the close of business on the related Determination
Date
and (ii) was not the subject of a previous Monthly Advance, but only to the
extent that such amount is expected, in the reasonable judgment of the Special
Servicer, to be recoverable from collections or other recoveries in respect
of
such Transferred Mortgage Loan.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Transferred Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, including
all riders thereto, 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 to be maintained by
the
Special Servicer in accordance with Section 3.12.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage,
including all riders thereto.
Mortgage
Pool:
With respect to each Mortgage Loan, the pool designation indicated on the
Mortgage Loan Schedule, all of the Mortgage Loans with the same pool designation
constituting a separate Mortgage Pool.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Advance:
Any
Monthly Advance or Servicing Advance previously made or proposed to be made
in
respect of a Transferred Mortgage Loan by the Special Servicer which, in
the
reasonable discretion of the Special Servicer, will not or, in the case of
a
proposed Servicing Advance, would not, ultimately be recoverable by the Special
Servicer from the related Mortgagor, related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or otherwise. The determination by the Special
Servicer that all or a portion of a Servicing Advance or a Monthly Advance
would
be a Nonrecoverable Advance shall be evidenced by a certification of a Servicing
Officer delivered to the Master Servicer, which details the reasons for such
determination and contains a property valuation performed in accordance with
Accepted Servicing Practices.
Notice
of Transfer:
With
regard to Distressed Mortgage Loans that will become Transferred Mortgage
Loans,
the notice given by the related Prior Servicer (if such Prior Servicer is
Aurora) to the Master Servicer, the applicable Custodian, the Trustee and
the
Special Servicer or by the Master Servicer (if the related Prior Servicer(s)
are
not Aurora) to the Prior Servicer(s), the applicable Custodian, the Trustee
and
the Special Servicer, in each case substantially in the form of Exhibit A
hereto.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board, the President, a Vice President or an assistant Vice President or
by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Special Servicer, and delivered to the Seller, the Master
Servicer and the Trustee as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Special Servicer,
reasonably acceptable to the Seller, the Trustee and the Master Servicer,
but
which must be an independent outside counsel with respect to any such opinion
of
counsel concerning all federal income tax matters.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
including any bulk policy acquired in respect of the Transferred Mortgage
Loans,
as required by this Agreement with respect to certain Transferred Mortgage
Loans.
Prepayment
Charge:
With
respect to any Transferred Mortgage Loan and Remittance Date, the charges
or
premiums, as specified in the Prepayment Charge Schedule, if any, due in
connection with a full or partial prepayment of such Transferred Mortgage
Loan
during the immediately preceding Principal Prepayment Period in accordance
with
the terms thereof.
Prepayment
Charge Schedule:
A data
field in the Transferred Mortgage Loan Schedule attached to the related Notice
of Transfer which sets forth the amount or method of calculation of the
Prepayment Charge and the term during which such Prepayment Charge is imposed
with respect to a Transferred Mortgage Loan.
Prepayment
Interest Shortfall Amount:
With
respect to any Transferred 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 Transferred Mortgage Loan prior to such Transferred Mortgage
Loan’s Due Date in such Due Period, the amount of interest (net 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 Transferred Mortgage
Loan and ending on the day of the immediately preceding such Due Date,
inclusive.
Principal
Prepayment:
Any
payment or other recovery of principal on a Transferred Mortgage Loan, including
any payment or other recovery of principal in connection with repurchase
of a
Transferred Mortgage Loan by the Seller, the Special Servicer, or any other
Person, which is received in advance of its scheduled Due Date, including
any
Prepayment Charge or premium thereon and which is not accompanied by an amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Principal
Prepayment Period:
With
respect to any Remittance Date and any full or partial Principal Prepayment,
the
calendar month immediately preceding the month of such Remittance
Date.
Prior
Servicer:
Any
servicer on behalf of the Trust Fund.
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 Fannie Mae and Freddie Mac.
Rating
Agency:
Each
of DBRS, Fitch and S&P
or their
successors. If such agencies or their successors are no longer in existence,
“Rating Agencies” shall be such nationally recognized statistical rating
agencies, or other comparable person, agreed upon and designated by the Seller,
notice of which designation shall be given to the Trustee, the Master Servicer
and the Special Servicer.
Regulation
AB:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
With
respect to each Distribution Date, the 18th day (or if such 18th day is not
a
Business Day, the first Business Day immediately preceding) of the month
in
which such Distribution Date occurs.
REO
Disposition:
The
final sale by the Special Servicer of any REO Property.
REO
Disposition Fee:
The
lesser of one percent (1%) of the REO Disposition Proceeds and (ii) $750.00,
which fee is payable from the REO Disposition Proceeds from the related REO
Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
3.17.
REO
Property:
A
Mortgaged Property acquired by the Special Servicer on behalf of the Trustee
through foreclosure or by deed in lieu of foreclosure, as described in Section
3.17.
Residual
Certificate:
The
Class R Certificate.
Seller:
Lehman
Brothers Holdings Inc. or its successor in interest or assigns.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements but not demand letter
fees and interest advances) made in accordance with Accepted Servicing Practices
and incurred in the performance by the Special Servicer or the related Prior
Servicer of its servicing obligations, including, but not limited to, the
cost
of (a) the preservation, restoration and protection of the Mortgaged Property,
(b) any enforcement or administrative or judicial proceedings, including
foreclosures, (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, PMI Policy premiums, LPMI Policy premiums
and fire and hazard insurance coverage and (e) any losses sustained by the
Special Servicer with respect to the liquidation of the Mortgaged
Property.
Servicing
Fee:
With
respect to each Due Period and any Transferred Mortgage Loan, an amount equal
to
one-twelfth the product of (i) the Servicing Fee Rate and (ii) the outstanding
principal balance of such Transferred Mortgage Loan as of the related
Determination Date. The Servicing Fee is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation Proceeds
to the extent permitted by Section 3.02 of this Agreement) of such Monthly
Payments collected by the Special Servicer, or as otherwise provided under
this
Agreement.
Servicing
Fee Rate:
[______]% per annum.
Servicing
File:
The
items pertaining to a particular Transferred 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 Transferred Mortgage Loan, which are held in trust
for the
Trustee by the Special Servicer.
Servicing
Officer:
Any
officer of the Special Servicer involved in or responsible for, the
administration and servicing of the Transferred Mortgage Loans whose name
appears on a list of servicing officers furnished by the Special Servicer
to the
Master Servicer upon request, as such list may from time to time be
amended.
Servicing
Transfer:
Any
transfer of the servicing by a Prior Servicer of Distressed Mortgage Loans
to
the Special Servicer under this Agreement.
Servicing
Transfer Date:
The
date on which a Servicing Transfer occurs in accordance with Section 2.01
hereof.
S&P:
Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies,
Inc. or any successor in interest.
Special
Servicer:
[SPECIAL SERVICER] or its successor in interest or assigns or any successor
to
the Special Servicer under this Agreement as herein provided.
Subcontractor:
Any vendor, subcontractor or other
Person that is not responsible for the overall servicing (as “servicing” is
commonly understood by participants in the mortgage-backed securities market)
of
the Mortgage Loans but performs one or more discrete functions identified
in
Item 1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of the Special Servicer or a related
Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Special 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 Special Servicer under
this
Agreement that are identified in Item 1122(d) of Regulation AB.
Transferred
Mortgage Loan:
A
Mortgage Loan that is a Distressed Mortgage Loan transferred by a Prior Servicer
and which is the subject of this Agreement and identified on the related
Transferred Mortgage Loan Schedule, which mortgage loan includes without
limitation the Transferred 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 Transferred Mortgage
Loan.
Transferred
Mortgage Loan Remittance Rate:
With
respect to each Transferred Mortgage Loan, the annual rate of interest remitted
to the Master Servicer, which shall be equal to the Mortgage Interest Rate
minus
the Servicing Fee Rate.
Transferred
Mortgage Loan Schedule:
A
schedule of the Transferred Mortgage Loans attached to each Notice of Transfer
setting forth information with respect to such Transferred Mortgage Loans
as
agreed to by the Seller, the Special Servicer and the Master
Servicer.
Trust
Agreement:
The
Trust Agreement dated as of [AGREEDATE], 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 Transferred Mortgage Loans and any other assets as set forth
therein.
Trustee:
[TRUSTEE] 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 SPECIAL SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section
2.01 Contract
for Servicing; Transfer of Distressed Mortgage Loans.
(a) The
Seller, by execution and delivery of this Agreement, does hereby contract
with
the Special Servicer as an independent contractor, subject to the terms of
this
Agreement, for the servicing of the Transferred Mortgage Loans.
(b) With
respect to any Mortgage Loans for which Aurora is the Prior Servicer: (i)
on the
second Business Day of each month, Aurora shall inform the Master Servicer
and
the Special Servicer as to which Mortgage Loans were Distressed Mortgage
Loans
as of the last day of the preceding month, (ii) on the tenth Business Day
of
each month, Aurora shall send by facsimile or electronic mail to the Master
Servicer, the Special Servicer, the applicable Custodian and the Trustee
a
Notice of Transfer (along with a Transferred Mortgage Loan Schedule attached
thereto) and shall mail to the Mortgagor of each Mortgage Loan listed in
a
Notice of Transfer a letter advising each such Mortgagor of the transfer
of the
servicing of the related Mortgage Loan to the Special Servicer, in accordance
with the Cranston Gonzales National Affordable Housing Act of 1990 (with
copies
of such notices to the Special Servicer), (iii) the Servicing Transfer Date
set
forth in each Notice of Transfer shall be on the first Business Day of the
month
following the month in which such Notice of Transfer has been sent or such
other
Business Day as required for compliance with the requirements of the Cranston
Gonzales National Affordable Housing Act of 1990 assuming the letters described
in subsection (b)(ii) above have been mailed within the time period required
therein, (iv) the Special Servicer shall acknowledge the terms of each Notice
of
Transfer by executing where indicated and sending by facsimile or electronic
mail to the Master Servicer, Aurora, the applicable Custodian and the Trustee
a
copy of such Notice of Transfer and (v) each Distressed Mortgage Loan as
set
forth in the related Notice of Transfer shall become a Transferred Mortgage
Loan
and the Special Servicer shall service such loan in accordance with the terms
of
this Agreement from and after the Servicing Transfer Date; provided, that,
Aurora shall not be required to transfer any Distressed Mortgage Loan which
ceases to be a Distressed Mortgage Loan between the date on which the notice
pursuant to subsection (b)(i) above is delivered and the date on which the
related Notice of Transfer is delivered pursuant to subsection (b)(ii)
above.
(c) Simultaneously
with the delivery of each Transfer Notice provided by Aurora to the Special
Servicer in accordance with Section 2(b), Aurora shall send by facsimile
or
email to the Special Servicer a list of each Distressed Mortgage Loan for
which
there is a pending or threatened claim or litigation (other than any foreclosure
claims or litigation) (each, a “Litigation Loan”) along with a brief description
and status of such pending or threatened claim or litigation. Within two
(2)
days of receipt of such notice, the Special Servicer shall send written notice
to Aurora as to which Litigation Loans it does not desire and which Litigation
Loans it does desire that Aurora transfer on the related Servicing Transfer
Date. Notwithstanding anything to the contrary contained in Section 2.01(b),
on
the related Servicing Transfer Date, Aurora shall transfer only those Litigation
Loans identified by the Special Servicer in such notice.
(d) With
respect to any Mortgage Loans for which Aurora is the not the Prior Servicer:
(i) on the eighteenth (18th)
day of
each month, the Master Servicer shall inform the Special Servicer and the
related Prior Servicer(s) as to which Mortgage Loans were Distressed Mortgage
Loans as of the last day of the preceding month and shall send by facsimile
or
electronic mail to the Prior Servicer(s), the Special Servicer, the applicable
Custodian and the Trustee a Notice of Transfer (along with a Transferred
Mortgage Loan Schedule attached thereto), (ii) shall use commercially reasonable
efforts to cause the related Prior Servicer(s) to mail to the Mortgagor of
each
Mortgage Loan listed in a Notice of Transfer a letter advising each such
Mortgagor of the transfer of the servicing of the related Mortgage Loan to
the
Special Servicer, in accordance with the Cranston Gonzales National Affordable
Housing Act of 1990 (and shall use commercially reasonable efforts to cause
the
related Prior Servicer(s) to provide the Special Servicer with copies of
such
notices), (iii) the Servicing Transfer Date set forth in each Notice of Transfer
shall be on the first day of the second month following the month in which
such
Notice of Transfer has been sent (e.g., if the Notice of Transfer is sent
October 18 the Servicing Transfer Date shall be December 1) or such other
Business Day as required for compliance with the requirements of the Cranston
Gonzales National Affordable Housing Act of 1990 assuming the letters described
in subsection (d)(ii) above have been mailed within the time period required
therein, (iv) the Special Servicer shall acknowledge the terms of each Notice
of
Transfer by executing where indicated and sending by facsimile or electronic
mail to the Master Servicer, the Prior Servicer(s), the applicable Custodian
and
the Trustee a copy of such Notice of Transfer and (v) each Distressed Mortgage
Loan shall become a Transferred Mortgage Loan and the Special Servicer shall
service such loan in accordance with the terms of this Agreement from and
after
the Servicing Transfer Date.
(e) Notwithstanding
anything to the contrary in this Section 2.01, if the Prior Servicer fails
to
conform with the Cranston National Affordable Housing Act of 1990 with respect
to any Transferred Mortgage Loan(s), the Special Servicer shall have no
liability for failure to service such Transferred Mortgage Loan(s) in accordance
with the terms of this Agreement to the extent, and only to the extent, such
failure to service results directly from the Prior Servicer’s failure to conform
with the Cranston National Affordable Housing Act of 1990.
Section
2.02 Delivery
of Transferred Mortgage Loan Files; Reimbursement of Advances.
(a) The
Servicer, the Seller and the Master Servicer hereby acknowledge and agree
that
with respect to any provisions of this Agreement relating to duties or
obligations of a Prior Servicer, the Master Servicer and the Seller shall
use
commercially reasonable efforts to cause such Prior Servicer to fulfill such
duties and obligations, but shall not be liable to the Special Servicer for
any
Prior Servicer’s failure to fulfill such duties and obligations.
(b) Each
Servicing Transfer from a Prior Servicer and the reimbursement of advances
related thereto shall take place in accordance with the terms and conditions
of
this Agreement. On or prior to the fourth Business Day following the related
Servicing Transfer Date, the Prior Servicer shall deliver to the Special
Servicer all Servicing Files in its possession on such Servicing Transfer
Date,
with respect to each Transferred Mortgage Loan in accordance with the Transfer
Instructions attached hereto as Exhibit I. If the Prior Servicer does not
provide substantially all of the information set forth in this Section 2.02(b)
with respect to any Transferred Mortgage Loan (if such information is applicable
to such Transferred Mortgage Loan), the Servicer will promptly notify the
Seller
and the Master Servicer with a report upon the discovery of missing information
and the Seller and the Master Servicer shall use their respective commercially
reasonable efforts to cause the related Prior Servicer to provide such missing
information to the Servicer. If the Prior Servicer is unable to provide such
missing information, the Special Servicer shall have no liability for the
failure to service such Mortgage Loan in accordance with the terms of this
Agreement to the extent, and only to the extent, such failure to service
directly results from the Prior Servicer’s failure to provide such missing
information to the Special Servicer.
(c) Within
five Business Days following such Servicing Transfer Date, the related Prior
Servicer shall deliver a report in form reasonably acceptable to the such
Prior
Servicer, the Master Servicer and the Special Servicer and commensurate with
generally acceptable industry standards, detailing the amount of any
unreimbursed Monthly Advances, Servicing Advances and accrued and unpaid
Servicing Fees on a loan level basis. Should the Master Servicer or the Special
Servicer desire a loan level tape or other electronic media containing
information which is not readily extractable from the related Prior Servicer’s
servicing system, such Prior Servicer shall reasonably cooperate to make
such
loan level data available to the Master Servicer and the Special Servicer.
The
Special Servicer shall reimburse the related Prior Servicer for such
unreimbursed Monthly Advances, Servicing Advances and accrued and unpaid
Servicing Fees within five Business Days of such Prior Servicer’s delivery of
such report. In addition, not later than the third Business Day following
the
related Servicing Transfer Date, the related Prior Servicer shall transfer
to
the Special Servicer any funds held in any escrow account or custodial account
relating to the related Transferred Mortgage Loans. The Special Servicer
shall
reconcile any such funds on or prior to the fifth Business Day following
the
related Servicing Transfer Date.
(d) In
connection with the transfer of any Distressed Mortgage Loan, (i) the related
Prior Servicer will be responsible for servicing the Distressed Mortgage
Loan
until the effective date of transfer of servicing to the Special Servicer,
but
shall have no right or obligation to service such Distressed Mortgage Loan
from
and after the related Servicing Transfer Date (ii) notwithstanding clause
(i)
above, such Prior Servicer shall include the Distressed Mortgage Loan in
its
monthly remittance report for the month in which such transfer is effected
and
shall be obligated, subject to the terms of the related servicing agreement,
to
make any Monthly Advance or Servicing Advance with respect to such Distressed
Mortgage Loan on such Prior Servicer’s scheduled remittance date in the month in
which such transfer is effected, in each case, regardless of whether such
Prior
Servicer’s scheduled remittance date occurs before or after the Servicing
Transfer Date, (iii) the amount of Monthly Advances and Servicing Advances
to be
reimbursed to such Prior Servicer by the Special Servicer hereunder shall
include the advances described in clause (ii) above regardless of whether
such
Prior Servicer makes such advance before or after the Servicing Transfer
Date,
(iv) the related Prior Servicer shall, no later than the end of the month
in
which such transfer is effected, provide to the Special Servicer loan level
information (in the loan level tape or other electronic media or other
agreed-upon form) regarding the Transferred Mortgage Loans during the month
of
such transfer as may be necessary to enable the Special Servicer to provide
such
information in its remittance report for the next following month, and (v)
each
of such Prior Servicer and the Special Servicer shall be entitled to its
pro
rata share of the Servicing Fee with respect to any such Transferred Mortgage
Loan for the month in which the Servicing Transfer Date occurs.
(e) Except
as
set forth in Section 2.01(b)(v) above, the parties hereby agree that once
a
Mortgage Loan becomes a Transferred Mortgage Loan, such loan shall remain
a
Transferred Mortgage Loan, and shall continue to be serviced by the Special
Servicer, regardless of delinquency status, whether the related Mortgaged
Property becomes an REO Property or otherwise, until the earlier of the
liquidation or other disposition of such Transferred Mortgage Loan or the
termination of this Agreement.
(f) Subject
to Section 2.2(a), with respect to each Servicing Transfer, the Special
Servicer, the Master Servicer and the related Prior Servicer shall take any
steps reasonably necessary, including, but not limited to, executing,
acknowledging and delivering all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances in order to accomplish
the provisions of Sections 2.01 and 2.02.
Section
2.03 Possession
of Transferred Mortgage Loan Files.
The
Special Servicer shall maintain a Servicing File with respect to each
Transferred Mortgage Loan in order to service such Transferred Mortgage Loans
pursuant to this Agreement and each Servicing File delivered to the Special
Servicer shall be held in trust by the Special Servicer for the benefit of
the
Trustee; provided,
however,
that the Special Servicer shall have no liability for any Servicing Files
(or
portions thereof) not delivered by the related Prior Servicer. The Special
Servicer’s possession of any portion of the Transferred Mortgage Loan documents
shall be at the will of the Trustee for the sole purpose of facilitating
servicing of the related Transferred Mortgage Loan pursuant to this Agreement,
and such retention and possession by the Special 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 Transferred Mortgage
Loan prepared by or which come into the possession of the Special Servicer
shall
immediately vest in the Trustee and shall be retained and maintained, in
trust,
by the Special Servicer at the will of the Trustee in such custodial capacity
only. The portion of each Servicing File retained by the Special Servicer
pursuant to this Agreement shall be segregated from the other books and records
of the Special Servicer and shall be appropriately marked to clearly reflect
the
ownership of the related Transferred Mortgage Loan by the Trustee. The Special
Servicer shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement.
Section
2.04 Books
and Records.
All
rights arising out of the Transferred Mortgage Loans shall be vested in the
Trustee, subject to the Special Servicer’s right to service and administer the
Transferred Mortgage Loans hereunder in accordance with the terms of this
Agreement. All funds received on or in connection with a Transferred Mortgage
Loan, other than the Servicing Fee and other compensation and reimbursement
to
which the Special Servicer is entitled as set forth herein, including but
not
limited to Section 5.03 below, shall be received and held by the Special
Servicer in trust for the benefit of the Trustee pursuant to the terms of
this
Agreement.
The
Special Servicer shall forward to the applicable Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Transferred Mortgage Loan entered into in accordance with Section 3.01 within
ten (10) days of their execution; provided,
however,
that
the Special Servicer shall provide the applicable Custodian with a Special
Servicer certified true copy of any such document submitted for recordation
within ten (10) days of its execution, and shall provide the original of
any
document submitted for recordation or a copy of such document certified by
the
appropriate public recording office to be a true and complete copy of the
original within 120 days of its submission for recordation, or at such later
time if the delay is due to the related public recording office.
ARTICLE
III.
SERVICING
OF THE TRANSFERRED MORTGAGE LOANS
Section
3.01 Special
Servicer to Service.
The
Special Servicer, as an independent contractor, shall service and administer
the
Transferred Mortgage Loans from and after each 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
Special Servicer may deem necessary or desirable, consistent with the terms
of
this Agreement and with Accepted Servicing Practices. The Special Servicer
shall
not perform its servicing responsibilities hereunder through subservicers;
provided, however, subservicing shall not be deemed to include the use of
a tax
service, or services for reconveyance, insurance or brokering REO Property
or
the retention of 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. Simultaneously
with
the execution of this Agreement, the Special Servicer shall enter into an
acknowledgment agreement with respect to the related Custodial Agreement.
If
Aurora is the Prior Servicer, the Seller shall promptly notify Aurora that
this
Agreement has been entered into and, upon request, shall deliver a copy of
this
Agreement to Aurora.
The
Seller, the Master Servicer and the Special Servicer additionally agree that
the
Special Servicer will 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.
Consistent
with the terms of this Agreement, the Special Servicer may waive, modify
or vary
any term of any Transferred Mortgage Loan or consent to the postponement
of
strict compliance with any such term or in any manner grant indulgence to
any
Mortgagor if in the Special Servicer’s reasonable and prudent determination such
waiver, modification, postponement or indulgence is not materially adverse
to
the Trust Fund on an aggregate basis, provided, however, that unless the
Mortgagor is in default with respect to the Transferred Mortgage Loan or
such
default is, in the judgment of the Special Servicer, imminent, the Special
Servicer shall not permit any modification with respect to any Transferred
Mortgage Loan that would change the Mortgage Interest Rate, 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 Transferred Mortgage Loan; provided, that the maturity date
of any
Transferred Mortgage Loan shall not be extended past the latest Final Scheduled
Distribution Date (as defined in the Trust Agreement), which is July 2047.
In
the event of any such modification, the Servicer shall calculate the Monthly
Payment for such Transferred Mortgage Loan based on the modified terms of
such
Transferred Mortgage Loan and shall only be required to make Monthly Advances
pursuant to Section 4.03 to the extent of such new Monthly Payment. If, in
connection with any modification, a Transferred Mortgage Loan has been modified
to increase its principal balance by the amount of any Monthly Advances or
any
Servicing Advances previously made by the Servicer on behalf of the related
Mortgagor (any such amount, a “Capitalization Reimbursement Amount”), the
Servicer may be reimbursed for such Capitalization Reimbursement Amount as
provided in Section 3.04. Without limiting the generality of the foregoing,
the
Special 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 and
all
other comparable instruments, with respect to the Transferred Mortgage Loans
and
with respect to the Mortgaged Properties; provided, further, that upon the
full
release or discharge, the Special Servicer shall notify the related Custodian
of
the related Mortgage Loan of such full release or discharge. If reasonably
required by the Special Servicer, the Trustee shall furnish the Special Servicer
with any powers of attorney in the form of Exhibit H attached hereto and
other
documents necessary or appropriate to enable the Special 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 Special Servicer under
such
powers of attorney. Notwithstanding
anything contained herein to the contrary, the Servicer shall not, without
the
Trustee’s written consent: (i) initiate any action suit or proceeding solely
under the Trustee’s name without indicating the Servicer’s representative
capacity; or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state. Promptly
after the execution of any assumption, modification, consolidation or extension
of any Transferred Mortgage Loan, the Special 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 Special Servicer shall not make
or
permit any modification, waiver or amendment of any term of any Transferred
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.
In
servicing and administering the Transferred Mortgage Loans, the Special Servicer
shall employ procedures (including collection procedures) and exercise the
same
care that it would employ and exercise in servicing and administering similar
mortgage loans for other institutional investors, giving due consideration
to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement.
Notwithstanding
anything herein to the contrary, the Special Servicer shall not be required
to
make any Servicing Advance if such Servicing Advance would, if made, constitute
a Nonrecoverable Servicing Advance as defined herein.
Section
3.02 Collection
and Liquidation of Transferred Mortgage Loans.
Continuously
from each Servicing Transfer Date until the date each Transferred Mortgage
Loan
ceases to be subject to this Agreement, the Special Servicer shall proceed
diligently to collect all payments due under each of the Transferred Mortgage
Loans when the same shall become due and payable and shall take special care
in
ascertaining and estimating Escrow Payments, to the extent such payments
are
required to be made by the related Mortgagor, and all other charges that
will
become due and payable with respect to the Transferred 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
Special Servicer shall use its best efforts, consistent with the procedures
that
the Special Servicer would use in servicing similar mortgage loans for other
institutional investors, to foreclose upon or otherwise comparably convert
the
ownership of such Mortgaged Properties as come into and continue in default
and
as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.01. The Special Servicer shall
use its
best efforts to realize upon defaulted Transferred Mortgage Loans in such
a
manner as will maximize the receipt of principal and interest by the Trust
Fund,
taking into account, among other things, the timing of foreclosure proceedings.
The foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Special Servicer shall not be required
to expend its own funds toward the restoration of such property unless it
shall
determine in its discretion (i) that such restoration will increase the proceeds
of liquidation of the related Transferred Mortgage Loan to the Master Servicer
after reimbursement to itself for such expenses, and (ii) that such expenses
will be recoverable by the Special Servicer through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property. In the event that
any
payment due under any Transferred Mortgage Loan and not postponed pursuant
to
Section 3.01 is not paid when the same becomes due and payable, or in the
event
the Mortgagor fails to perform any other covenant or obligation under the
Transferred Mortgage Loan and such failure continues beyond any applicable
grace
period, the Special Servicer shall take such action as (1) the Special Servicer
would take for other institutional investors under similar circumstances
with
respect to a similar mortgage loan, (2) shall be consistent with Accepted
Servicing Practices, (3) the Special Servicer shall determine prudently to
be in
the best interest of the Trust Fund, and (4) is consistent with any related
LPMI
Policy.
Section
3.03 Establishment
of and Deposits to Custodial Account.
The
Special Servicer shall segregate and hold all funds collected and received
pursuant to the Transferred 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
“[SPECIAL SERVICER] in trust for [TRUSTEE], as Trustee for the [Structured
Asset
Securities Corporation]”. Each Custodial Account shall be an Eligible Deposit
Account established with an Eligible Institution in a manner that shall provide
maximum available insurance thereunder. Any funds deposited in the Custodial
Account may be invested in Eligible Investments subject to the provisions
of
Section 3.10 hereof. Funds deposited in the Custodial Account may be drawn
on by
the Special Servicer in accordance with Section 3.04. The creation of any
Custodial Account shall be evidenced by a letter agreement in the form of
Exhibit B hereto. A copy of such certification or letter agreement shall
be
furnished to the Master Servicer upon request.
The
Special Servicer shall deposit in the Custodial Account, within two (2) business
days of receipt and retain therein, the following collections received by
the
Special Servicer and payments made by the Special Servicer after the Cut-off
Date (other than scheduled payments of principal and interest due on or before
the Cut-off Date) or the Servicing Transfer Date, as applicable:
(i) all
payments on account of principal on the Transferred Mortgage Loans, including
all Principal Prepayments;
(ii) all
payments on account of interest on the Transferred Mortgage Loans adjusted
to
the Transferred Mortgage Loan Remittance Rate;
(iii) all
Prepayment Charges;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 3.11 (other than proceeds to be held in the Escrow Account and applied
to the restoration and repair of the Mortgaged Property or released to the
Mortgagor in accordance with the related Transferred Mortgage Loan documents
and
Accepted Servicing Practices);
(vi) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with the related
Transferred Mortgage Loan documents and Accepted Servicing
Practices;
(vii) any
other
amount required to be deposited in the Custodial Account pursuant to this
Agreement;
(viii) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Special Servicer’s own funds, without reimbursement therefor up to
a maximum amount per month of the Servicing Fee actually received for such
month
for the Transferred Mortgage Loans;
(ix) all
Monthly Advances made by the Special Servicer pursuant to Section
4.03;
(x) any
amounts received from the seller of a Transferred Mortgage Loan or any other
person giving representations and warranties with respect to the Transferred
Mortgage Loan, in connection with the repurchase of any Transferred Mortgage
Loan;
(xi) any
amounts required to be deposited by the Special Servicer pursuant to Section
3.11 in connection with the deductible clause in any blanket hazard insurance
policy;
(xii) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xiii) any
amounts required to be deposited by the Special Servicer pursuant to Section
3.16 in connection with any unpaid claims that are a result of a breach by
the
Special Servicer or any subservicer of the obligations hereunder or under
the
terms of a PMI Policy; and
(xiv) any
amounts received by the Special Servicer under a PMI or LPMI
Policy.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the Servicing Fee or Ancillary
Income need not be deposited by the Special 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 Special Servicer and the Special
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 Special Servicer.
Section
3.04 Permitted
Withdrawals From Custodial Account.
The
Special Servicer shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to
make
payments to the Master Servicer in the amounts and in the manner provided
for in
Section 4.01;
(ii) in
the
event the Special 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 Transferred Mortgage Loan (including late collections
of
interest on such Transferred Mortgage Loan, or interest portions of Insurance
Proceeds, Liquidation Proceeds or Condemnation Proceeds) prior to the deposit
of
such Mortgagor payment or recovery in the Custodial Account, to pay to itself
the related Servicing Fee from all such Mortgagor payments on account of
interest or other such recovery for interest with respect to that Transferred
Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances
(excluding Capitalization Reimbursement Amounts) made by it (A) that it
determines in good faith will not be recoverable from amounts representing
late
recoveries of payments of principal or interest respecting the particular
Transferred Mortgage Loan as to which such Monthly Advance or Servicing Advance
was made or from Liquidation Proceeds or Insurance Proceeds with respect
to such
Transferred Mortgage Loan and/or (B) to the extent that such unreimbursed
Monthly Advances and Servicing Advances exceed the related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and other
amounts received in respect of the related REO Property, it being understood
that, in the case of any such reimbursement, the Special Servicer’s right
thereto shall be prior to the rights of the Trust Fund;
(iv) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances
(excluding Capitalization Reimbursement Amounts), the Special Servicer’s right
to reimburse itself pursuant to this subclause (iv) with respect to any
Transferred Mortgage Loan being limited to such amounts as may be collected
by
the Special Servicer from the Mortgagor or otherwise relating to such
Transferred Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Special Servicer’s right thereto shall be prior to the rights
of the Trust Fund;
(v) to
pay
itself interest on funds deposited in the Custodial Account;
(vi) to
transfer funds to another Eligible Institution in accordance with Section
3.10
hereof;
(vii) to
invest
funds in certain Eligible Investments in accordance with Section 3.10
hereof;
(viii) with
respect to each LPMI Loan, an amount equal to the related LPMI Fee to make
payment of premiums due under the LPMI Policy;
(ix) to
reimburse itself for any unreimbursed Capitalization Reimbursement Amounts
solely from collections on account of principal in the related Mortgage
Pool;
(x) to
reimburse itself for any Prepayment Charges deposited into the Custodial
Account
in error with respect to any Prepayment Period, but only to the extent that
Prepayment Charges on deposit in the Custodial Account with respect to the
related Mortgage Pool equal or exceed such Prepayment Charges deposited in
error;
(xi) to
withdraw funds deposited in error; and
(xii) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
3.05 Establishment
of and Deposits to Escrow Account.
The
Special Servicer shall segregate and hold all funds collected and received
pursuant to a Transferred 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, “[SPECIAL SERVICER] in trust for [TRUSTEE], as Trustee for the
[SERIES NO.]”. 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
Special
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 hereto. A copy of such certification or letter agreement
shall
be furnished to the Master Servicer upon request.
The
Special Servicer shall deposit in the Escrow Account or Accounts on a daily
basis, within two (2) Business Days of receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Transferred Mortgage Loans, for
the
purpose of effecting timely payment of any such items as required under the
terms of this Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Special 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 Special Servicer shall be entitled to retain any interest paid
on
funds deposited in the Escrow Account by the depository institution, other
than
interest on escrowed funds required by law to be paid to the Mortgagor. To
the
extent required by law, the Special 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; provided, that, the accounts are maintained at an Eligible Institution
selected by the Special Servicer.
Section
3.06 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Special Servicer
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Special Servicer for any Servicing Advance made by the Special
Servicer with respect to a related Transferred Mortgage Loan, but only from
amounts received on the related Transferred Mortgage Loan which represent
late
collections of Escrow Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required
under
the terms of the related Transferred Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Custodial Account
and
application to reduce the principal balance of the Transferred Mortgage Loan
in
accordance with the terms of the related Mortgage and Mortgage
Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 3.15;
(vi) to
pay to
the Special Servicer, or any Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account;
(vii) to
transfer funds to another Eligible Institution in accordance with Section
3.10
hereof;
(viii) to
withdraw funds deposited in error; and
(ix) to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Special Servicer will be responsible for the administration of the Escrow
Accounts and will be obligated to make Servicing Advances to the Escrow Account
in respect of its obligations under this Section 3.06, reimbursable from
the
Escrow Accounts or Custodial Account to the extent not collected from the
related Mortgagor, anything to the contrary notwithstanding, when and as
necessary to avoid the lapse of insurance coverage on the Mortgaged Property,
or
which the Special Servicer knows or to avoid the loss of the Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Special Servicer receives notice of a tax
lien
with respect to the Mortgage being imposed, the Special Servicer will, within
ten (10) Business Days of such notice, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property.
Section
3.07 Notification
of Adjustments.
With
respect to each adjustable rate Transferred Mortgage Loan, the Special 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 Special 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 Special Servicer
shall promptly, upon written request therefor, deliver to the Master Servicer
such notifications and any additional applicable data regarding such
adjustments. Upon the discovery by the Special Servicer or the receipt of
notice
from the Master Servicer that the Special Servicer has failed to adjust a
Mortgage Interest Rate or Monthly Payment in accordance with the terms of
the
related Mortgage Note, the Special Servicer shall immediately deposit in
the
Custodial Account from its own funds the amount of any interest loss or deferral
caused the Seller thereby.
Section
3.08 Completion
and Recordation of Assignments of Mortgage.
As
soon as practicable after 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 Special Servicer, if such actions have not already been taken,
shall (i) 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;
(ii) 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; (iv) record
or
cause to be recorded all Assignments of Mortgage with respect to Non-MERS
Mortgage Loans in the name of the Trustee; (v) pay the recording costs incurred
pursuant to this section; and/or (vi) track such Mortgages and Assignments
of
Mortgage to ensure they have been recorded. The Special Servicer shall be
entitled to be paid by the Seller fees for the preparation and recordation
of
the Mortgages and Assignments of Mortgage. After the expenses of such recording
costs pursuant to Section 2.02 hereof shall have been paid by the Special
Servicer, the Special Servicer shall submit to the Seller a reasonably detailed
invoice for reimbursement of recording costs and fees it incurred
hereunder.
Section
3.09 Payment
of Taxes, Insurance and Other Charges.
(a) With
respect to each Transferred Mortgage Loan which provides for Escrow Payments,
the Special 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
fire and hazard insurance coverage and shall obtain, from time to time, all
by
the Special Servicer for the payment of such charges (including renewal
premiums) (“Property
Charges”)
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 Special Servicer in
amounts sufficient for such purposes, as allowed under the terms of the
Mortgage. The Special Servicer assumes full responsibility for the timely
payment of all such Property Charges and 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.
(b)
To
the
extent that a Transferred Mortgage Loan does not provide for Escrow Payments,
the Special Servicer shall make advances from its own funds to effect payment
of
all Property Charges to the extent necessary to preserve the lien status
of the
Mortgage, to avoid the lapse of insurance coverage on the Mortgaged Property
or
to avoid the loss of the Mortgaged Property due to a tax sale or foreclosure
as
a result of a tax lien. The Special Servicer shall pay any late fee or penalty
which is payable due to any delay in payment of any Property Charge. Such
late
fees or penalties shall be deemed to be Servicing Advances, reimbursable
to
Special Servicer in accordance with Section 3.04 hereof.
Section
3.10 Protection
of Accounts.
The
Servicer may transfer the 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 Special Servicer
shall give notice to the Master Servicer of any change in the location of
the
Custodial Account or Escrow Account no later than 30 days after any such
transfer is made and deliver to the Master Servicer a certification notice
in
the form of Exhibit B or Exhibit C, as applicable, with respect to such Eligible
Institution.
The
Special 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 may at the option of the Special Servicer
be
invested in Eligible Investments. Any such Eligible Investment shall mature
no
later than three days prior to the Remittance Date; provided, however, that
if
such Eligible Investment is an obligation of a Eligible Institution (other
than
the Special Servicer) that maintains the Custodial Account, then such Eligible
Investment may mature on such Remittance Date. Any such Eligible Investment
shall be made in the name of the Special 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 Special Servicer and may be withdrawn at
any
time by the Special Servicer. Any losses incurred in respect of any such
investment shall be deposited in the Custodial Account, by the Special Servicer
out of its own funds immediately as realized.
Section
3.11 Maintenance
of Hazard Insurance.
The
Special Servicer shall cause to be maintained for each Transferred Mortgage
Loan
hazard insurance such that all buildings upon the Mortgaged Property are
insured
by a generally acceptable insurer acceptable under Fannie Mae and Freddie
Mac
guidelines against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
in
an amount which is at least equal to the lesser of (i) the replacement value
of
the improvements securing such Transferred Mortgage Loan and (ii) the greater
of
(x) the outstanding principal balance of the Transferred Mortgage Loan and
(y)
an amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer.
If
upon
origination of the Transferred 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 rated B:VI or better in the current
edition of Best’s Key Rating Guide 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 Transferred Mortgage Loan, the Special Servicer
determines in accordance with applicable law and pursuant to the Fannie Mae
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
Special 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 Special Servicer shall immediately force place the required
flood insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Special Servicer
shall verify that the coverage required of the owner’s association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current Fannie Mae requirements, and secure from the
owner’s association its agreement to notify the Special Servicer promptly of any
change in the insurance coverage or of any condemnation or casualty loss
that
may have a material effect on the value of the Mortgaged Property as
security.
The
Special Servicer shall cause to be maintained on each Mortgaged Property
earthquake or such other or additional insurance only to the extent required
pursuant to such applicable laws and regulations as shall at any time be
in
force and as shall require such additional insurance, or pursuant to the
requirements of any private mortgage guaranty insurer, or as may be required
to
conform with Accepted Servicing Practices.
In
the
event that the Master Servicer or the Special Servicer shall determine that
the
Mortgaged Property should be insured against loss or damage by hazards and
risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Special Servicer shall communicate and
consult
with the Mortgagor with respect to the need for such insurance and bring
to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Special Servicer as loss payee
and
shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice
of
any cancellation, reduction in amount or material change in
coverage.
The
Special Servicer shall not interfere with the Mortgagor’s freedom of choice in
selecting either his insurance carrier or agent, provided, however, that
the
Special Servicer shall not accept any such insurance policies from insurance
companies unless such companies are rated B:VI or better in Best’s Key Rating
Guide and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Special Servicer shall determine that such policies
provide sufficient risk coverage and amounts, that they insure the property
owner, and that they properly describe the property address. The Special
Servicer shall furnish to the Mortgagor a formal notice of expiration of
any
such insurance in sufficient time for the Mortgagor to arrange for renewal
coverage by the expiration date.
Pursuant
to Section 3.04, any amounts collected by the Special Servicer under any
such
policies (other than amounts to be deposited in the Escrow Account and applied
to the restoration or repair of the related Mortgaged Property, or property
acquired in liquidation of the Transferred Mortgage Loan, or to be released
to
the Mortgagor, in accordance with the Special Servicer’s normal servicing
procedures as specified in Section 3.15) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 3.05.
Section
3.12 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Special 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 3.11 and otherwise
complies with all other requirements of Section 3.11, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 3.11. Any
amounts collected by the Special 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 3.11, and there
shall
have been a loss which would have been covered by such policy, the Special
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 deposited from the Servicer's funds, without
reimbursement therefor.
Section
3.13 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Special Servicer shall maintain with responsible companies, at its own expense,
a blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with
broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Transferred Mortgage Loans (“Special
Servicer Employees”).
Any such Fidelity Bond and Errors and Omissions Insurance Policy shall be
in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Special Servicer against losses, including forgery, theft, embezzlement,
fraud,
errors and omissions and negligent acts of such Special Servicer Employees.
Such
Fidelity Bond and Errors and Omissions Insurance Policy also shall protect
and
insure the Special Servicer against losses in connection with the release
or
satisfaction of a Transferred Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 3.13
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Special Servicer from its duties and obligations
as set
forth in this Agreement. The minimum coverage under any such bond and insurance
policy shall be at least equal to the corresponding amounts required by Fannie
Mae in the Fannie Mae Guides or by Freddie Mac in the Freddie Mac Sellers’ &
Servicers’ Guide. Upon the request of the Master Servicer or the Trustee, the
Special Servicer shall cause to be delivered to such party a certified true
copy
of such fidelity bond and insurance policy and a statement from the surety
and
the insurer that such fidelity bond and insurance policy shall in no event
be
terminated or materially modified without 30 days’ prior written notice to the
Master Servicer.
Section
3.14 Inspections.
The
Special Servicer shall inspect the Mortgaged Property as often as deemed
necessary by the Special Servicer in accordance with Accepted Servicing
Practices to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Transferred Mortgage Loan delinquent, the
Special
Servicer shall inspect the Mortgaged Property in accordance with Accepted
Servicing Practices or as may be required by the primary mortgage guaranty
insurer. The Special Servicer shall keep a written report of each such
inspection.
Section
3.15 Restoration
of Mortgaged Property.
The
Special Servicer need not obtain the approval of the Master Servicer or the
Trustee 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, the Special Servicer shall comply with the following conditions
in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(i)
the
Special Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(ii)
the
Special 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
Special Servicer shall verify that the Transferred Mortgage Loan is not in
default; and
(iv)
pending
repairs or restoration, the Special Servicer shall place the Insurance Proceeds
or Condemnation Proceeds in the Escrow Account.
Section
3.16 Maintenance
of PMI and/or LPMI Policy; Claims.
(a) The
Special 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 Special Servicer shall be obligated to
make
premium payments with respect to (i) LPMI Policies, to the extent of the
LPMI
Fee set forth on the Transferred Mortgage Loan Schedule with respect to any
LPMI
Loans, which shall be paid out of the interest portion of the related Monthly
Payment or, if a Monthly Payment is not made, from the Special Servicer’s own
funds and (ii) PMI Policies required to be maintained by the Mortgagor rather
than the Seller, if the Mortgagor is required but fails to pay any PMI Policy
premium, which shall be paid from the Special Servicer’s own funds. Any premium
payments made by the Special Servicer from its own funds pursuant to this
Section 3.16(a) shall be recoverable by the Special Servicer as a Servicing
Advance, subject to the reimbursement provisions of Section 3.04(iii).
With
respect to each Transferred Mortgage Loan (other than LPMI Loans) that has
a PMI
Policy in effect as of the Transfer Date, the Special Servicer shall maintain
or
cause the Mortgagor to maintain (to the extent that the Transferred 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 Transferred Mortgage Loan
is
reduced to 80%. In the event that such PMI Policy shall be terminated, the
Special 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 Special
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 Special
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
Transferred Mortgage Loan, the Special 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 Special Servicer shall
obtain a replacement PMI Policy as provided above.
(b) With
respect to each Transferred Mortgage Loan covered by a PMI Policy or LPMI
Policy, the Special Servicer shall take all such actions on behalf of the
Trustee as are necessary to service, maintain and administer the related
Transferred Mortgage Loan in accordance with such Policy and to enforce the
rights under such Policy. Except as expressly set forth herein, the Special
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 Special Servicer shall not take any action to permit any modification
or
assumption of a Transferred Mortgage Loan covered by a LPMI or PMI Policy,
or
take any other action with respect to such Transferred Mortgage Loan, which
would result in non-coverage under such Policy of any loss which, but for
actions of any Special Servicer or the subservicer, would have been covered
thereunder. If the Qualified Insurer fails to pay a claim under a LPMI or
PMI
Policy solely as a result of a breach by the Special Servicer or subservicer
of
its obligations hereunder or under such Policy, the Special 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 Special Servicer shall
cooperate with the Qualified Insurers and shall furnish all reasonable evidence
and information in the possession of the Special Servicer to which the Special
Servicer has access with respect to the related Transferred Mortgage
Loan.
(c)
In
connection with its activities as servicer, the Special 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 Transferred Mortgage Loan. Any
amounts collected by the Special Servicer under any PMI Policy or LPMI Policy
shall be deposited in the Custodial Account pursuant to Sections 3.03(xiv)
and
(xv), subject to withdrawal pursuant to Section 3.04.
(d)
The
Trustee shall furnish the Special Servicer with any powers of attorney and
other
documents (within three (3) Business Days upon request from the Special
Servicer) in form as provided to it and at the Special Servicer’s expense
necessary or appropriate to enable the Special Servicer to service and
administer any PMI or LPMI Policy; provided,
however,
that the
Trustee shall not be liable for the actions of the Special Servicer under
such
power of attorney.
(e)
The
Special Servicer shall deposit into the Custodial Account pursuant to Section
3.03(v) hereof all Insurance Proceeds received under the terms of a PMI Policy
or an LPMI Policy.
(f)
Notwithstanding
the provisions of (a) and (b) above, the Special Servicer shall not take
any
action in regard to any PMI Policy or LPMI Policy inconsistent with the
interests of the Trustee or the Certificateholders or with the rights and
interests of the Trustee or the Certificateholders under this Agreement.
Section
3.17 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, pursuant
to a limited power of attorney in the form attached hereto as Exhibit H,
in the
name of the Trustee or its nominee (which in no event shall be the Special
Servicer) in trust for the benefit of the Certificateholders, or in the event
the Trustee is not authorized or permitted to hold title to real property
in the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an Opinion of Counsel obtained by the Special 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. Any such Opinion
of
Counsel will be deemed a Servicing Advance, reimbursable to the Special Servicer
in accordance with Section 3.04. 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
Special Servicer shall manage, conserve, protect and operate each REO Property
for the Trustee solely for the purpose of its prompt disposition and sale.
The
Special Servicer, either itself or through an agent selected by the Special
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 Special 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 Special Servicer deems to be in the best interest of the
Trustee and the Certificateholders.
In
the
event that the Trust Fund acquires any REO Property in connection with a
default
or imminent default on a Transferred Mortgage Loan, the Special 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 Special Servicer
has applied for and received a grant of extension from the Internal Revenue
Service (and provide a copy of the same to the Master Servicer and the Trustee)
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
and has notified the Master Servicer and the Trustee of such extension by
providing a copy of the application and the grant of such extension to the
Trustee and the Master Servicer. If the Special Servicer has received such
an
extension (and provided a copy of the same to the Master Servicer and the
Trustee), then the Special 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 Special Servicer has not
received such an extension and the Special Servicer is unable to sell the
REO
Property within the period ending three months before the end of such third
taxable year after its acquisition by the Trust Fund or if the Special Servicer
has received such an extension, and the Special Servicer is unable to sell
the
REO Property within the period ending three months before the close of the
Extended Period, the Special Servicer shall, before the end of the three-year
period or the Extended Period, as applicable, (i) purchase such REO Property
at
a price equal to the REO Property’s fair market value or (ii) auction the REO
Property to the highest bidder (which may be the Special 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 reasonably requested by, and at the expense of, the Special
Servicer, or take any other action reasonably requested by the Special Servicer
which would enable the Special Servicer, on behalf of the Trust Fund, to
request
such grant of extension. In
all cases, the disposition of REO Property shall be carried out by the Special
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interests of the Trust Fund.
Notwithstanding
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 Special Servicer has agreed to indemnify
and
hold harmless the Trust Fund with respect to the imposition of any such
taxes.
The
Special 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
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Special Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed Monthly
Advances made pursuant to this Section or Section 4.03 or the REO Disposition
Fee.
The
Special Servicer shall make advances of all funds necessary for the proper
operation, management and maintenance of the REO Property, including the
cost of
maintaining any hazard insurance pursuant to Section 3.10, such advances
to be
reimbursed from the disposition or liquidation proceeds of the REO Property.
The
Special 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 3.17 and of any reserves reasonably required from time to time to
be
maintained to satisfy anticipated liabilities for such
expenses).
Section
3.18 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Special Servicer
shall furnish to the Master Servicer on or before the Remittance Date in
each
month a statement with respect to any REO Property covering the operation
of
such REO Property for the previous month and the Special 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 the Master Servicer shall
reasonably request.
Section
3.19 Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof
by the
Trust Fund pursuant to a deed in lieu of foreclosure, the Special Servicer
shall
submit to the Trustee and the Master Servicer a liquidation report with respect
to such Mortgaged Property. In addition, the Special Servicer shall provide
the
Master Servicer a report setting forth Servicing Advances and other expenses
incurred in connection with the liquidation of any Transferred Mortgage
Loan.
Section
3.20 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Special
Servicer shall report such foreclosure or abandonment as required pursuant
to
Section 6050J of the Code.
Section
3.21 Prepayment
Charges.
The
Special Servicer or any designee of the Special Servicer shall not waive
any
Prepayment Charge with respect to any Transferred Mortgage Loan which contains
a
Prepayment Charge which prepays during the term of the charge. If the Special
Servicer or its designee fails to collect the Prepayment Charge upon any
prepayment of any Transferred Mortgage Loan which contains a Prepayment Charge
pursuant to the Transferred Mortgage Loan documents that are available to
the
Special Servicer for such Transferred Mortgage Loan, the Special Servicer
shall
pay the Trust Fund at such time (by deposit to the Custodial Account) an
amount
equal to the Prepayment Charge which was not collected. Notwithstanding the
above, the Special Servicer or its designee may waive a Prepayment Charge
without paying the Trust Fund the amount of the Prepayment Charge if (i)
the
Transferred Mortgage Loan is in default (defined as 61 days or more delinquent)
and such waiver would maximize recovery of total proceeds taking into account
the value of such Prepayment Charge and the related Transferred Mortgage
Loan or
(ii) if the prepayment is not a result of a refinance by the Special Servicer
or
any of its affiliates and (a) the Transferred Mortgage Loan is foreseen to
be in
default and such waiver would maximize recovery of total proceeds taking
into
account the value of such Prepayment Charge and the related Transferred Mortgage
Loan, (b) the collection of the Prepayment Charge would be in violation of
applicable laws or (c) notwithstanding any state or federal law to the contrary,
a Prepayment Charge in any instance when a Transferred Mortgage Loan is in
foreclosure.
Section
3.22 Compliance
with Safeguarding Customer Information Requirements.
The
Special 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
Special Servicer shall promptly provide the Seller or the Master Servicer
information regarding such security measures upon the reasonable request
of the
Seller or the Master Servicer which information shall include, but not be
limited to, any Statement on Auditing Standards (SAS) No. 70 report covering
the
Special Servicer’s operations, and any other audit reports, summaries of test
results or equivalent measures taken by the Special Servicer with respect
to its
security measures to the extent reasonably necessary in order for the Seller
to
satisfy its obligations under the Guidelines.
Section
3.24 Advance
Facility
(a) The
Special Servicer is hereby authorized to enter into a financing or other
facility (any such arrangement, an “Advance Facility”), the documentation for
which complies with Section 3.24(c), under which (1) the Special Servicer
assigns or pledges its rights under this Agreement to be reimbursed for any
or
all Monthly Advances and/or Servicing Advances to (i) a Person, which may
be a
special-purpose bankruptcy-remote entity (an “SPV”), (ii) a Person, which may
simultaneously assign or pledge such rights to an SPV or (iii) a lender (a
“Lender”), which, in the case of any Person or SPV of the type described in
either of the preceding clauses (i) or (ii), may directly or through other
assignees and/or pledgees, assign or pledge such rights to a Person, which
may
include a trustee acting on behalf of holders of debt instruments (any such
Person or any such Lender, an “Advance Financing Person”), and/or (2) an Advance
Financing Person agrees to fund all the Advances and/or Servicing Advances
required to be made by the Special Servicer pursuant to this Agreement. No
consent of the Master Servicer, Trustee, Certificateholders or any other
party
shall be required before the Special Servicer may enter into an Advance Facility
nor shall the Master Servicer, Trustee or the Certificateholders be a third
party beneficiary of any obligation of an Advance Financing Person to the
Special Servicer. Notwithstanding the existence of any Advance Facility under
which an Advance Financing Person agrees to fund Monthly Advances and/or
Servicing Advances, (A) the Special Servicer (i) shall remain obligated pursuant
to this Agreement to make Monthly Advances and/or Servicing Advances pursuant
to
and as required by this Agreement and (ii) shall not be relieved of such
obligations by virtue of such Advance Facility and (B) neither the Advance
Financing Person nor any Special Servicer’s Assignee (as hereinafter defined)
shall have any right to proceed against or otherwise contact any Mortgagor
for
the purpose of collecting any payment that may be due with respect to any
related Transferred Mortgage Loan or enforcing any covenant of such Mortgagor
under the related Transferred Mortgage Loan documents.
(b) If
the
Special Servicer enters into an Advance Facility, the Special Servicer and
the
related Advance Financing Person shall deliver to the Master Servicer and
the
Trustee at their respective addresses set forth in Section 9.04 hereof a
written
notice (an “Advance Facility Notice”), stating (a) the identity of the Advance
Financing Person and (b) the identity of the Person (the “Special Servicer’s
Assignee”) that will, subject to Section 3.24(c) hereof, have the right to make
withdrawals from the Custodial Account pursuant to Section 3.04 hereof to
reimburse previously unreimbursed Monthly Advances and/or Servicing Advances
(“Advance Reimbursement Amounts”). Advance Reimbursement Amounts (i) shall
consist solely of amounts in respect of Monthly Advances and/or Servicing
Advances made with respect to the Transferred Mortgage Loans for which the
Special Servicer would be permitted to reimburse itself in accordance with
Section 3.04 hereof, assuming the Special Servicer had made the related Monthly
Advances and/or Servicing Advances and (ii) shall not consist of amounts
payable
to a successor servicer in accordance with Section 3.04 hereof as provided
under
Section 3.24(d) below.
(c) Notwithstanding
the existence of an Advance Facility, the Special Servicer, on behalf of
the
Advance Financing Person, shall be entitled to receive reimbursements of
Monthly
Advances and/or Servicing Advances in accordance with Section 3.04 hereof,
which
entitlement may be terminated by the Advance Financing Person pursuant to
a
written notice to the Master Servicer and the Trustee in the manner set forth
in
Section 9.04 hereof. Upon receipt of such written notice, the Special Servicer
shall no longer be entitled to receive reimbursement for any Advance
Reimbursement Amounts and the Special Servicer’s Assignee shall immediately have
the right to receive from the Custodial Account all Advance Reimbursement
Amounts. Notwithstanding the foregoing, and for the avoidance of doubt, (i)
the
Special Servicer and the Special Servicer’s Assignee, as applicable, shall only
be entitled to reimbursement of Advance Reimbursement Amounts hereunder from
withdrawals from the Custodial Account pursuant to Section 3.04 hereof and
(ii)
none of the Master Servicer, the Trustee nor the Certificateholders shall
be
entitled to receive any Advance Reimbursement Amounts to which the Special
Servicer or the Special Servicer’s Assignee, as applicable, shall be entitled
pursuant to this Section 3.24. An Advance Facility may be terminated by the
joint written direction of the Special Servicer and the related Advance
Financing Person. Written notice of such termination shall be delivered to
the
Master Servicer and the Trustee in the manner set forth in Section 9.04 hereof.
None of the Master Servicer or the Trustee shall have any duty or liability
with
respect to the calculation or payment of any Advance Reimbursement Amount,
nor
shall the Master Servicer, the Depositor or the Trustee have any responsibility
to track or monitor the administration of the Advance Facility or the payment
of
Reimbursement Amounts to the related Advance Financing Person. The Special
Servicer shall indemnify the Master Servicer, the Depositor, the Trustee,
the
Trust Fund, any successor Special Servicer for any claim, loss, liability
or
damage resulting from (i) any claim by the related Advancing Financing Person
and (ii) any errors in Advance Reimbursement Amounts or other amounts withdrawn
from the Custodial Account by the Special Servicer’s Advance Financing Person,
except to the extent that such claim, loss, liability or damage that resulted
from or arose out of gross negligence, recklessness or willful misconduct
on the
part of the Master Servicer, the Depositor, the Trustee, the Trust Fund or
any
successor Special Servicer, as the case may be. The Special Servicer shall
maintain and provide to any successor servicer and (upon request) the Master
Servicer a detailed accounting on a loan by loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advance Financing Person.
The
successor servicer shall be entitled to rely on any such information provided
by
the Special Servicer, and the successor special servicer shall not be liable
for
any errors in such information.
(d) As
between the Special Servicer and its Advance Financing Person, on the one
hand,
and a successor servicer and its advance financing person, if any, on the
other
hand, Advance Reimbursement Amounts on a loan-by-loan basis with respect
to each
Transferred Mortgage Loan as to which a Monthly Advance and/or a Servicing
Advance shall have been made and be outstanding shall be allocated on a
“first-in, first out” basis. In the event the Special Servicer’s Assignee shall
have received some or all of an Advance Reimbursement Amount related to Monthly
Advances and/or Servicing Advances that were made by a Person in error, then
the
Special Servicer’s Assignee shall be required to remit any portion of such
Advance Reimbursement Amount to each person entitled to such portion of such
Advance Reimbursement Amount. The Special Servicer shall promptly notify
the
Special Servicer’s Assignee upon becoming aware of any such erroneous receipt.
If the Special Servicer’s Assignee fails to reimburse any Person entitled to a
portion of any such Advance Reimbursement Amount within ten (10) days of
receiving notice of the erroneous payment, the Special Servicer shall promptly
so reimburse such Person. Without limiting the generality of the foregoing,
the
Special Servicer shall remain entitled to be reimbursed by the Advance Financing
Person for all Monthly Advances and/or Servicing Advances funded by the Special
Servicer to the extent the related Advance Reimbursement Amounts have not
been
assigned or pledged to such Advance Financing Person or the Special Servicer’s
Assignee.
(e) With
respect to any certificate of a Servicing Officer of a successor servicer
delivered in connection with any Nonrecoverable Advance, such Nonrecoverable
Advance referred to therein may have been made by the Special Servicer or
a
successor servicer. In making its determination that any Monthly Advance
or
Servicing Advance theretofore made has become a Nonrecoverable Advance, the
successor servicer shall apply the same criteria in making such determination
regardless of whether such Monthly Advance or Servicing Advance shall have
been
made by the successor servicer or the Special Servicer.
(f) Any
amendment to this Section 3.24 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.24, including amendments to add provisions
relating to a successor servicer, may be entered into by the Seller, the
Trustee, the Master Servicer and the Special Servicer without the consent
of any
Certificateholder, notwithstanding anything to the contrary in this Agreement
or
the Trust Agreement. All reasonable costs and expenses (including attorneys’
fees) of each of the parties in the preceding sentence of any such amendment
shall be borne solely by the Special Servicer. The parties hereto hereby
acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances
financed by and/or pledged to an Advance Financing Person under any Advance
Facility are obligations owed to the Special Servicer payable only from cash
flows and proceeds received under this Agreement for reimbursement of Monthly
Advances and Servicing Advances only to the extent provided herein, and the
Master Servicer, the Trustee and the Trust Fund are not, as a result of the
existence of any Advance Facility, obligated or be liable to repay any Monthly
Advances and/or Servicing Advances financed by Advance Financing Person;
(ii)
the Special Servicer will be responsible for remitting to the Advance Financing
Person the applicable amounts collected by it as reimbursement for Monthly
Advances and/or Servicing Advances funded by the Advance Financing Person,
subject to the provisions of this Agreement; and (iii) the Master Servicer
and
the Trustee shall not have any responsibility to track or monitor the
administration of the financing agreement between the Special Servicer and
any
Advance Financing Person.
(a) The
Special Servicer shall maintain in good standing its membership in MERS.
In
addition, the Special Servicer shall comply with all rules, policies and
procedures of MERS.
(b) With
respect to all MERS Mortgage Loans serviced hereunder, the Special Servicer
shall promptly notify MERS as to any transfer of beneficial ownership of
such
Mortgage Loans of which the Special Servicer has notice.
(c) With
respect to all MERS Mortgage Loans serviced hereunder, the Special Servicer
shall notify MERS as to any transfer of servicing hereunder within 10 Business
Days of such transfer of servicing. The Special Servicer shall cooperate
with
the Trustee, the Master Servicer and any successor Special Servicer to the
extent necessary to ensure that such transfer of servicing is appropriately
reflected on the MERS system.
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 Special
Servicer shall remit on a scheduled/scheduled basis by wire transfer of
immediately available funds to the Master Servicer (a) all amounts deposited
in
the Custodial Account as of the close of business on the last day of the
related
Due Period (net of charges against or withdrawals from the Custodial Account
pursuant to Section 3.04), plus (b) all Monthly Advances, if any, which the
Special Servicer is obligated to make pursuant to Section 4.03, minus (c)
any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after
the
applicable Principal Prepayment Period, which amounts shall be remitted on
the
following Remittance Date, together with any additional interest required
to be
deposited in the Custodial Account in connection with such Principal Prepayment
in accordance with Section 3.03(viii), and minus (d) any amounts attributable
to
Monthly Payments collected but due on a Due Date or Due Dates subsequent
to the
first day of the month in which such Remittance Date occurs, which amounts
shall
be remitted on the Remittance Date next succeeding the Due Date related to
such
Monthly Payment.
With
respect to any remittance received by the Master Servicer after the second
Business Day following the Business Day on which such remittance payment
was
due, the Special Servicer shall pay to the Master Servicer interest on any
such
late payment at an annual rate equal to one and one-half (1.5) 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 Special
Servicer on the date such late payment is made and shall cover the period
commencing with the day following such second 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 Special Servicer of any such interest
shall
not be deemed an extension of time by the Trustee or the Master Servicer
for
payment or a waiver of any Event of Default.
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:
The
Bank
of New York Mellon
New
York,
New York
ABA#:
021-000-018
Account
Name: Aurora Loan Services
LLC
| |
|
Master
Servicing Payment Clearing Account
|
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: [SERIES NO.]
Section
4.02 Statements
to Master Servicer and Depositor.
(a) Not
later
than the fifth (5th)
calendar day of each month, the Special Servicer shall furnish to the Master
Servicer (i) a monthly defaulted loan report in the format set forth in Exhibit
D-2 hereto (or in such other format mutually agreed between the Special 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. Not later than the tenth (10th)
calendar day of each month, the Special Servicer shall furnish to the Master
Servicer (i) a monthly remittance advice in the format set forth in Exhibit
D-1
hereto, a monthly loan loss report in the format set forth in Exhibit D-3
hereto
(or in such other format mutually agreed between the Special Servicer and
the
Master Servicer) and a monthly modified loan report in the format set forth
in
Exhibit D-4 hereto (or in such other format mutually agreed to between the
Special 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. The format of this monthly
reporting may be amended from time to time to the extent necessary to comply
with applicable law.
(b) Beginning
with calendar year 2009, the Special Servicer shall prepare and file any
and all
tax returns, information statements or other filings for the tax year 2009
and
subsequent tax years required to be delivered to any governmental taxing
authority or to the Master Servicer and/or the Trustee pursuant to any
applicable law with respect to the Transferred Mortgage Loans and the
transactions contemplated hereby. In addition, the Special Servicer shall
provide the Master Servicer and/or the Trustee with such information concerning
the Transferred Mortgage Loans as is necessary for the Trustee to prepare
the
Trust Fund’s federal income tax return as the Master Servicer and/or the Trustee
may reasonably request from time to time. Such obligation of the Special
Servicer shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Special Servicer pursuant
to any
requirements of the Code as from time to time are in force.
(c) The
Special Servicer agrees to provide the Depositor with all information concerning
the Transferred Mortgage Loans that is reasonably requested by the Depositor,
which information shall include, but not be limited to, monthly data on each
Transferred Mortgage Loan in the Trust Fund, information on delinquent and
defaulted Transferred Mortgage Loans, information on Prepayment Charges with
respect to the Transferred Mortgage Loans, and copies of realized loss
certificates or any itemization regarding each liquidated Transferred Mortgage
Loan for the applicable Due Period.
(d) The
Special Servicer shall promptly notify the Trustee, the Master Servicer and
the
Depositor (i) of any legal proceedings pending against the Special Servicer
of
the type described in Item 1117 (§ 229.1117) of Regulation AB, (ii) if the
Special Servicer shall become (but only to the extent not previously disclosed
to the Trustee, the Master Servicer and the Depositor) at any time an affiliate
of any of the parties listed on Exhibit K to this Agreement
and (iii) provide to the Master Servicer and the Trustee a description of
such
proceedings, affiliations or relationships.
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
and
the Depositor pursuant to the preceding sentence, the Special Servicer shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in Section 6.01(j)
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
Special
Servicer
shall provide to the
Trustee, 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 Special
Servicer, the Special
Servicer’s engagement of any Subservicer, Subcontractor or vendor to perform or
assist in the performance of any of the Special
Servicer’s obligations under this Agreement, any material litigation involving
the Special
Servicer, and any affiliation or other significant relationship between the
Special
Servicer
and other transaction parties.
(e) 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 Special
Servicer
shall provide to the Trustee, the Master Servicer and the Depositor notice
of
the occurrence of any material modifications, extensions or waivers of terms,
fees, penalties or payments relating to the Mortgage Loans during the related
Due Period 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 Special Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Special 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
(with
interest adjusted to the Transferred Mortgage Loan Remittance Rate) which
were
due on the Transferred 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 Special 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 Special Servicer shall keep appropriate
records of such amounts and will provide such records to the Master Servicer
upon request.
The
Special Servicer’s obligation to make such Monthly Advances as to any
Transferred Mortgage Loan will continue through the last Monthly Payment
due
prior to the payment in full of the Transferred 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 Transferred
Mortgage Loan. Notwithstanding anything in this Section 4.03 to the contrary,
the Special Servicer’s obligation to make Monthly Advances on the Transferred
Mortgage Loans in the aggregate for a Remittance Date shall be reduced by
any
Capitalization Reimbursement Amounts reimbursed to the Servicer during the
related Due Period.
Section
4.04 Due
Dates Other Than the First of the Month.
Transferred
Mortgage Loans having Due Dates other than the first day of a month shall
be
accounted for as described in this Section 4.04. Any payment due on a day
other
than the first day of each month shall be considered due on the first day
of the
month following the month in which that payment is due as if such payment
were
due on the first day of said month. For example, a payment due on October
15
shall be considered to be due on October 1 of said month. Any payment collected
on a Transferred Mortgage Loan after the Cut-off Date shall be deposited
in the
Custodial Account. For Transferred Mortgage Loans with Due Dates on the first
day of a month, deposits to the Custodial Account begin with the payment
due on
the first of the month following the Cut-off Date.
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
Section
5.01 Transfers
of Mortgaged Property.
The
Special 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, to the extent
that the Special Servicer has actual knowledge of any conveyance or prospective
conveyance by any Mortgagor. When the Mortgaged Property has been conveyed
by
the Mortgagor, the Special Servicer shall, to the extent it has knowledge
of
such conveyance, exercise its rights to accelerate the maturity of such
Transferred Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided, however, that the Special 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
Special Servicer reasonably believes it is unable under applicable law to
enforce such “due-on-sale” clause, the Special Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property
has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event
the
Special Servicer is unable under applicable law to require that the original
Mortgagor remain liable under the Mortgage Note and the Special 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.
If an assumption fee is collected by the Special Servicer for entering into
an
assumption agreement, such assumption fee shall be deemed to be Ancillary
Income. In connection with any assumption agreement entered into by the Special
Servicer, neither the Mortgage Interest Rate borne by the related Mortgage
Note,
the term of the Transferred Mortgage Loan nor the outstanding principal amount
of the Transferred Mortgage Loan shall be changed.
To
the extent that any Transferred Mortgage Loan is assumable, the Special Servicer
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the respective jurisdictions where the Mortgaged Property is
located.
Section
5.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Transferred Mortgage Loan, or the receipt by the Special
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Special Servicer shall notify the Master
Servicer in the Monthly Remittance Advice as provided in Section 4.02, and
may request the release of any Transferred Mortgage Loan Documents from the
Seller in accordance with this Section 5.02 hereof.
If
the Special Servicer satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Special Servicer otherwise prejudice any rights the Seller, the Trustee
or
the Trust Fund may have under the mortgage instruments, the Special Servicer
shall deposit into the Custodial Account the entire outstanding principal
balance, plus all accrued interest on such Transferred Mortgage Loan, on
the day
preceding the Remittance Date in the month following the date of such release.
The Special Servicer shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 3.13 insuring the Special
Servicer against any loss it may sustain with respect to any Transferred
Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section
5.03 Servicing
Compensation.
As
consideration for servicing the Transferred Mortgage Loans subject to this
Agreement, the Special Servicer shall retain the relevant Servicing Fee for
each
Transferred Mortgage Loan remaining subject to this Agreement during any
month
or part thereof. Such Servicing Fee shall be payable monthly. Additional
servicing compensation in the form of Ancillary Income shall be retained
by the
Special Servicer and is not required to be deposited in the Custodial Account.
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 Special Servicer. The aggregate Servicing Fees for
any
month with respect to the Transferred Mortgage Loans shall be reduced by
the
aggregate Prepayment Interest Shortfall Amount for such month. The Special
Servicer shall be obligated to pay the aggregate Prepayment Interest Shortfall
Amount for any month up to a maximum of the aggregate Servicing Fees for
such
month. The Special Servicer shall be entitled to recover any unpaid Servicing
Fee to the extent not remitted, out of Insurance Proceeds, Condemnation
Proceeds, REO Disposition Proceeds or Liquidation Proceeds to the extent
permitted in Section 3.04 and out of amounts derived from the operation and
sale
of an REO Property to the extent permitted by Section 3.17.
The
Special Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to
reimbursement thereof except as specifically provided for herein.
Section
5.04 Report
on Attestation of Compliance with Applicable Servicing Criteria.
On
or before March 1st of each calendar year, beginning with March 1, 2009,
the
Special Servicer shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to the Special Servicer),
which
is a member of the American Institute of Certified Public Accountants, to
furnish to the Seller, the Trustee and the Master Servicer (i) year-end audited
(if available) financial statements of the Special 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 5.06 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, on or before
March 1st of each calendar year, beginning with March 1, 2009, the Special
Servicer shall, at its own expense, furnish to the Seller, the Trustee, the
Depositor and 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 (each, without respect to any threshold limitations
in
Instruction 2. to Item 1122 of Regulation AB, a “Participating Entity”) and for
which the Special Servicer does not elect to take responsibility for assessing
compliance with the servicing criteria in accordance with Regulation AB
Telephone Interpretation 17.06.
Section
5.05 Annual
Officer’s Certificate.
(a) On
or
before March 1st of each year, beginning with March 1, 2009, the Special
Servicer, at its own expense, will deliver to the Seller, 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 L hereto, stating, as to each signer thereof, that (1) a review
of
the activities of the Special 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 Special 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 Special Servicer to remedy
such
default.
(b) For
so
long as a certificate under the Sarbanes-Oxley Act of 2002, as amended,
(“Sarbanes-Oxley”) is required to be given on behalf of the Trust Fund, a
Servicing Officer shall, using its best reasonable efforts, on or before
March
1st but in no event later than March 15th,
(or if
not a Business Day, the immediately preceding Business Day) of each calendar
year, beginning in 2009, execute and deliver an Officer’s Certificate to the
Sarbanes Certifying Party for the benefit of the Trust Fund and such Sarbanes
Certifying Party, its officers, directors and affiliates, in the form of
Exhibit
G hereto.
(c) The
Special Servicer shall indemnify and hold harmless the Seller, the Master
Servicer, the Depositor, the Trustee 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 Special Servicer
or
any of its officers, directors, agents or affiliates of its obligations under
this Section 5.05 or the negligence, bad faith or willful misconduct of the
Special Servicer in connection therewith. If the indemnification provided
for
herein is unavailable or insufficient to hold harmless the Master Servicer
and/or the Depositor, then the Special Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer and/or the Depositor
as a
result of the losses, claims, damages or liabilities of the Master Servicer
and/or the Depositor in such proportion as is appropriate to reflect the
relative fault of the Master Servicer and/or the Depositor on the one hand
and
the Special Servicer on the other in connection with a breach of the Special
Servicer’s obligations under this Section 5.03 or the Special Servicer’s
negligence, bad faith or willful misconduct in connection
therewith.
Section
5.06 Report
on Assessment of Compliance with Applicable Servicing Criteria.
On
or
before March 1 of each calendar year, beginning with March 1, 2009, the Special
Servicer shall deliver to the Seller, the Trustee, the Master Servicer and
the
Depositor a report regarding its assessment of compliance with the servicing
criteria identified in Exhibit J attached hereto, as of and for the period
ending the end of the fiscal year ending no later than December 31 of the
year
prior to the year of delivery of the report, with respect to asset-backed
security transactions taken as a whole in which the Special Servicer is
performing all of the servicing criteria specified in Exhibit J. 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 Special Servicer
as
provided in Section 5.04.
The
Special Servicer shall provide the Trustee and the Master Servicer, upon
reasonable advance notice, during normal business hours, access to all records
maintained by the Special Servicer in respect of its rights and obligations
hereunder and access to officers of the Special Servicer responsible for
such
obligations. Upon request, the Special Servicer shall furnish to the Trustee
and
the Master Servicer its most recent audited financial statements and such
other
information relating to its capacity to perform its obligations under this
Agreement.
ARTICLE
VI.
Representations,
Warranties and Agreements
Section
6.01 Representations,
Warranties and Agreements of the Special Servicer.
The
Special Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Master Servicer, the Depositor and the Trustee, as of the date hereof
and
as of each Servicing Transfer Date:
(a) Due
Organization and Authority.
The
Special Servicer is a limited partnership duly organized, validly existing
and
in good standing under the laws of 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 Special Servicer,
and
in any event the Special 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 Special Servicer has the full corporate 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 Special 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 Special Servicer and all requisite corporate action has
been
taken by the Special Servicer to make this Agreement valid and binding upon
the
Special 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 Special Servicer;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the servicing
responsibilities by the Special 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 Special Servicer’s certificate of limited
partnership or limited partnership agreement or any legal restriction or
any
agreement or instrument to which the Special 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 Special Servicer or its property is subject,
or
impair the ability of the Special Servicer to service the Transferred Mortgage
Loans that would impair the value of the Transferred Mortgage
Loans;
(d) Ability
to Perform.
The
Special 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 known to be
contemplated) or threatened against the Special 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 Special Servicer or any Subservicer, or in any
material impairment of the right or ability of the Special Servicer or any
Subservicer to carry on its business substantially as now conducted, or in
any
material liability on the part of the Special 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 Special Servicer
contemplated herein, or which would be likely to impair materially the ability
of the Special 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 Special
Servicer of or compliance by the Special Servicer with this Agreement, or
if
required, such approval has been obtained prior to the date hereof or the
related Servicing Transfer Date, as applicable;
(g) No
Default.
The
Special Servicer is not in default, and no event or condition exists that
after
the giving of notice or lapse of time or both, would constitute an event
of
default under any material mortgage, indenture, contract, agreement, judgment,
or other undertaking, to which the Special Servicer is a party or which purports
to be binding upon it or upon any of its assets, which default could impair
materially the ability of the Special Servicer to perform under the terms
of
this Agreement;
(h) Ability
to Service.
The
Special Servicer is an approved seller/servicer of conventional residential
mortgage loans for Fannie Mae and Freddie Mac, with the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans
of
the same type as the Transferred Mortgage Loans. The Special Servicer
is in
good
standing to service mortgage loans for either Fannie Mae or Freddie Mac,
and no
event has occurred, including but not limited to a change in insurance coverage,
which would make the Special Servicer unable to comply with either Fannie
Mae or
Freddie Mac eligibility requirements or which would require notification
to
either of Fannie Mae or Freddie Mac; and
(i) No
Commissions to Third Parties.
The
Special 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.
(j) Additional
Representations and Warranties of the Special Servicer.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor
and
the Trustee prior to the Closing Date: (i)
the Special 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 Special Servicer;
(ii) the
Special Servicer has not been terminated as special 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 Special Servicer as special
servicer
has been disclosed or reported by the Special Servicer; (iv) no material
changes to the Special 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 Special Servicer’s financial condition
that could have a material adverse effect on the performance by the
Special Servicer of its servicing obligations under this Agreement
and (vi) there are no affiliations, relationships or transactions relating
to
the Special Servicer or any Subservicer with any party listed on Exhibit
K
hereto.
Section
6.02 Remedies
for Breach of Representations and Warranties of the Special
Servicer.
It
is
understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the engagement of the Special Servicer to perform
the
servicing responsibilities as of the related Servicing Transfer Date hereunder
and the delivery of the Servicing Files to the Special Servicer and shall
inure
to the benefit of the Depositor, the Master Servicer and the Trustee. Upon
discovery by either the Special Servicer, the Master Servicer or the Trustee
of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the ability of the Special Servicer to perform its
duties
and obligations under this Agreement or otherwise materially and adversely
affects the value of the Transferred Mortgage Loans, the Mortgaged Property
or
the priority of the security interest on such Mortgaged Property or the
interests of the Master Servicer or the Trustee, the party discovering such
breach shall give prompt written notice to the other.
Within
60
days of (or, in the case of any breach of representation or warranty set
forth
in Section 6.01(j), the grace period, if any, as set forth in Section
8.01(a)(iii)) the earlier of either discovery by or notice to the Special
Servicer of any breach of a representation or warranty set forth in Section
6.01
which materially and adversely affects the ability of the Special Servicer
to
perform its duties and obligations under this Agreement or otherwise materially
and adversely affects the value of the Transferred Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such Mortgaged Property,
the Special Servicer shall use its best efforts promptly to cure such breach
in
all material respects and, if such breach cannot be cured, the Special Servicer
shall, at the Trustee’s or the Master Servicer’s option, assign the Special
Servicer’s rights and obligations under this Agreement (or respecting the
affected Transferred Mortgage Loans) to a successor special servicer. Such
assignment shall be made in accordance with Sections 9.01 and 9.02.
In
addition, the Special Servicer shall indemnify the Master Servicer and the
Trustee (and each of their respective directors, officers, employees and
agents)
and the Trust Fund, and hold each of them harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Special Servicer’s representations and warranties contained in Section
6.01.
Any
cause of action against the Special 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 Special Servicer or notice thereof
by
the Master Servicer, the Depositor or the Trustee to the Special Servicer,
(ii)
failure by the Special Servicer to cure such breach within the applicable
cure
period, and (iii) demand upon the Special Servicer by the Master Servicer
for
compliance with this Agreement.
Section
6.03 Additional
Indemnification by the Special Servicer; Third Party Claims.
(a) The
Special Servicer shall indemnify the Seller, the Depositor, the Trustee,
the
Master Servicer, 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 Special Servicer, any Subservicer or any Subcontractor to
deliver
any information, report, certification, accountants’ letter or other material
when and as required under this Agreement, including any report under Sections
5.04, 5.05 or 5.06 or any failure by the Special Servicer to identify pursuant
to Section 7.04(c) any Subcontractor that is a Participating Entity;
(B) the
failure of the Special 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 Special Servicer to cause any event to occur or not to occur
which would have occurred or would not have occurred, as applicable, if the
Special 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 Special 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 Special Servicer, any Subservicer or any Subcontractor.
The
Special Servicer shall immediately notify the Seller, the Depositor, the
Master
Servicer, the Trustee, 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 Special
Servicer’s indemnification pursuant to Section 6.02, or the failure of the
Special Servicer to service and administer the Mortgage Loans in material
compliance with the terms of this Agreement, the Trust Fund shall indemnify
the
Special Servicer and hold the Special Servicer harmless against any and all
Costs that the Special 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 special servicer, other than any
Costs
incurred by reason of the Special 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 Special Servicer of its duties and obligations
set
forth herein, the Special Servicer shall indemnify the Holder of the related
Residual Certificate, the Master Servicer, the Trustee, the Seller and the
Trust
Fund (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 Special Servicer shall not be liable for any such Losses attributable
to the action or inaction of the Trustee, the Seller, the Master Servicer,
the
Depositor or the Holder of such Residual Certificate, as applicable, nor
for any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Special Servicer has relied. Notwithstanding
the foregoing, however, in no event shall the Special 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 Special 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 Special Servicer acknowledges
and
agrees that the purpose of Sections 4.02(d) and (e), 5.04, 5.05, 5.06, 6.01(j),
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 Special Servicer agrees that (a) the obligations of the Special
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 Special 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 Special 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
Special 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 Special Servicer, (collectively, the “Special
Servicer Information”), provided
that
such information shall be required to be provided by the Special 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.
The
Special Servicer hereby agrees to indemnify and hold harmless the Depositor,
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 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 Special 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 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 Special 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 Special Servicer Information furnished to the Depositor
or Master Servicer by or on behalf of the Special Servicer specifically in
connection with this Agreement.
ARTICLE
VII.
the
Special Servicer
Section
7.01 Merger
or Consolidation of the Special Servicer.
The
Special Servicer shall keep in full effect its existence, rights and franchises
as a limited partnership, and shall obtain and preserve its qualification
to do
business as a foreign corporation 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 Transferred Mortgage Loans
and to
perform its duties under this Agreement.
Any
Person into which the Special Servicer may be merged or consolidated, or
any
corporation resulting from any merger, conversion or consolidation to which
the
Special Servicer shall be a party, or any Person succeeding to the business
of
the Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary notwithstanding,
provided, however, that the successor or surviving Person shall be an
institution (i) having a net worth of not less than $25,000,000, and (ii)
which
is a Fannie Mae- and Freddie Mac-approved servicer in good
standing.
Section
7.02 Limitation
on Liability of the Special Servicer and Others.
Neither
the Special Servicer nor any of the directors, officers, employees or agents
of
the Special Servicer shall be under any liability to the Master Servicer,
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 Special
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 Special Servicer and any director, officer, employee or agent
of
the Special 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 Special 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 Transferred Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Special Servicer may undertake any such action
which
it may deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto. In such event, the Special 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 Special Servicer.
This
Agreement has been entered into with the Special Servicer in reliance upon
the
independent status of the Special Servicer, and the representations as to
the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing, and the continuance thereof.
Therefore, except as expressly provided in this Section 7.03 and Sections
3.24,
7.01 and 9.13, the Special Servicer shall neither assign its rights under
this
Agreement or the servicing hereunder nor delegate its duties hereunder or
any
portion thereof; provided, that, in each case that the Special Servicer
transfers the servicing hereunder (other than a transfer of servicing caused
by
the Seller, the Master Servicer, the Trustee or the Certificateholders) or
the
Special Servicer or disposes of all or substantially all of its property
or
assets, there must be delivered to the Seller, the Master Servicer and the
Trustee a letter from each Rating Agency to the effect that such transfer
of
servicing or sale or disposition of assets will not result in a qualification,
withdrawal or downgrade of the then current rating of any of the Certificates.
The
Special Servicer shall not resign from the obligations and duties hereby
imposed
on it except by mutual consent of the Special Servicer and the Master Servicer
or upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Special
Servicer, or as may be permitted pursuant to Section 9.13(b)(i). Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Seller,
the
Master Servicer and the Trustee which Opinion of Counsel shall be in form
and
substance reasonably acceptable to each of them. No such resignation shall
become effective until a successor shall have assumed the Special Servicer’s
responsibilities and obligations hereunder in the manner provided in Section
8.01.
Without
in any way limiting the generality of this Section 7.03, in the event that
the
Special Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, except to the extent permitted by and in accordance with this
Section
7.03 and Sections 3.20, 7.01 and 9.13, without the prior written consent
of the
Seller and Master Servicer, 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
Special Servicer or any third party.
Section
7.04 Subservicing
Agreements and Successor Subservicer.
(a) The
Special Servicer shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Special Servicer as
special
servicer under this Agreement unless the Special 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 Fannie Mae or Freddie Mac
Seller/Servicer as indicated in writing and (ii) represents and warrants
that it
is in compliance with the laws of each state as necessary to enable it to
perform its obligations under such subservicing agreement. The Special 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 Special Servicer
as
special servicer under this Agreement unless the Special Servicer complies
with
the provisions of paragraph (c) of this Section 7.04.
(b) The
Special Servicer shall give prior written notice to the Trustee, the Master
Servicer and the Depositor of the appointment of any Subservicer and shall
furnish to the Trustee, the Master Servicer, and the Depositor a copy of
any
related subservicing agreement. For purposes of this Agreement, the Special
Servicer shall be deemed to have received payments on Mortgage Loans immediately
upon receipt by any Subservicer of such payments. Each subservicing agreement
shall provide that a successor Special Servicer shall have the option to
terminate such agreement without payment of any fees if the predecessor Special
Servicer is terminated or resigns. The Special Servicer shall cause any
Subservicer used by the Special Servicer (or by any Subservicer) to comply
with
the provisions of this Section 7.04 and with Sections 4.02(d), 5.04, 5.05(a),
5.05(b), 5.06, 6.01(j) and 6.03 and Exhibit J of this Agreement to the same
extent as if such Subservicer were the Special Servicer. The Special Servicer
shall be responsible for obtaining from each Subservicer and delivering to
the
Trustee, the Master Servicer and the Depositor any special servicer compliance
statement required to be delivered by such Subservicer under Section 5.05(a),
any reports on assessment of compliance and attestation required to be delivered
by such Subservicer under Sections 5.04 and 5.06 and any certification required
to be delivered under 5.05(b) to the Person that will be responsible for
signing
the Sarbanes Certification under Section 5.06 as and when required to be
delivered hereunder.
(c) The
Special Servicer shall give prior written notice to the Master Servicer and
the
Depositor of the appointment of any Subcontractor and a written description
(in
form and substance satisfactory to the Master Servicer and the Depositor)
of the
role and function of each Subcontractor utilized by the Special Servicer
or any
Subservicer, specifying (A) the identity of each such Subcontractor, (B)
which
(if any) of such Subcontractors are Participating Entities, and (C) which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance provided by each Subcontractor
for which the Special 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 (B) of this
paragraph.
As
a condition to the utilization of any Subcontractor determined to be a
Participating Entity, the Special Servicer shall cause any such Subcontractor
used by the Special Servicer (or by any Subservicer) for the benefit of the
Trustee, the Master Servicer and the Depositor to comply with the provisions
of
Sections 4.02(d), 5.04, 5.06, 6.01(j) and 6.03 and Exhibit J of this Agreement
to the same extent as if such Subcontractor were the Special Servicer. The
Special Servicer shall be responsible for obtaining from each Subcontractor
for
which the Special 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 Master
Servicer and the Depositor any assessment of compliance and attestation required
to be delivered by such Subcontractor under Sections 5.04 and 5.06, in each
case
as and when required to be delivered.
The
Special Servicer acknowledges that a Subservicer or 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 Subservicer or Subcontractor would be a Participating
Entity with respect to the Mortgage Loans viewed in isolation. The Special
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 Subservicer and each Subcontractor and (B) cause each Subservicer and
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
5.06.
Notwithstanding
any subservicing agreement or the provisions of this Agreement relating to
agreements or arrangements between the Special 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 Special
Servicer shall remain obligated and primarily liable to the Trust Fund, the
Trustee, the Master Servicer 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 Special Servicer
alone were servicing the Mortgage Loans, including with respect to compliance
with Item 1122 of Regulation AB. The Special Servicer shall be entitled to
enter
into any agreement with a Subservicer, Subcontractor or a third party for
indemnification of the Special Servicer by such Subservicer, Subcontractor
or
third party and nothing contained in the Agreement shall be deemed to limit
or
modify such indemnification.
ARTICLE
VIII.
TERMINATION
Section
8.01 Termination
for Cause.
(a) Any
of
the following occurrences shall constitute a servicer event of termination
(each, a “Special Servicer Event of Termination”) on the part of the Special
Servicer:
(i)
any
failure by the Special 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 (2) Business Days after the date upon which written notice
of such failure, requiring the same to be remedied, shall have been given
to the
Special Servicer by the Master Servicer; or
(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 (i) above, any failure by the
Servicer to duly perform, within the required time period, without notice
or
grace period, its obligations to provide any other information, data or
materials required to be provided hereunder pursuant to Sections 4.02(c),
4.02(d), 6.01(j) and 7.04, including any items required to be included in
any
Exchange Act report; or
(iv)
failure
by the Special Servicer to maintain its license to do business or service
residential mortgage loans in any jurisdiction where the Mortgaged Properties
are located; or
(v)
a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Special Servicer and such decree
or
order shall have remained in force undischarged or unstayed for a period
of 60
days; or
(vi)
the
Special Servicer shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to the Special Servicer
or of
or relating to all or substantially all of its property; or
(vii)
the
Special 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 consecutive Business Days
(or up
to 10 consecutive Business Days due to acts of God, acts of war or terrorism
or
other disasters of a similar nature, provided, that, during such period the
Special Servicer uses its best efforts to restart its normal business operations
through disaster recovery plans); or
(viii)
the
Special Servicer ceases to meet the qualifications of a Fannie Mae or Freddie
Mac lender/servicer; or
(ix)
the
Special Servicer attempts, without the consent of the Master Servicer and
the
Seller, to assign the servicing of the Transferred Mortgage Loans or its
right
to servicing compensation hereunder in a manner not permitted under this
Agreement or the Special Servicer attempts to sell or otherwise dispose of
all
or substantially all of its property or assets of the Special Servicer’s
servicing operations or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof in a manner not permitted under this Agreement;
(x)
if
any of
the Rating Agencies reduces or withdraws the rating of any of the Certificates
due to a reason attributable to the Special Servicer; or
(xi)
the
net
worth of the Special Servicer shall be less than $25,000,000.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Seller, the Trustee or the
Master
Servicer may have at law or equity to damages, including injunctive relief
and
specific performance, the Seller, the Trustee or the Master Servicer, by
notice
in writing to the Special Servicer, may terminate all the rights and obligations
of the Special Servicer under this Agreement and in and to the servicing
contract established hereby and the proceeds thereof.
Upon
receipt by the Special Servicer of such written notice, all authority and
power
of the Special Servicer under this Agreement, whether with respect to the
Transferred Mortgage Loans or otherwise, shall pass to and be vested in a
successor servicer appointed by the Master Servicer with notice to the Trustee.
Upon written request from the Master Servicer, the Special 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 Transferred Mortgage Loans and related documents (if the
related Transferred Mortgage Loan was recorded (or placed with respect to
MERS
Transferred Mortgage Loans by the Special Servicer) in a name other than
the
Trust Fund or such other name required by the Master Servicer or the Trustee),
at the Special Servicer’s sole expense. The Special Servicer shall cooperate
with the Seller, the Master Servicer, the Trustee and such successor in
effecting the termination of the Special 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 Special Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Transferred Mortgage Loans.
By
a
written notice, the Master Servicer, with notice to the Trustee, may waive
any
default by the Special 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 of the Special Servicer for cause pursuant to this Section
8.01,
all unreimbursed Servicing Advances and Monthly Advances still owing the
Special
Servicer shall be paid in accordance with Section 3.24 and unpaid Servicing
Fees
shall be paid by the Trust Fund following final liquidation of the related
Transferred Mortgage Loan.
Section
8.02 Termination
Without Cause.
This
Agreement shall terminate upon: (i) the later of (x) the distribution of
the
final payment or liquidation proceeds on the last Transferred Mortgage Loan
to
the Master Servicer (or advances by the Special Servicer for the same), and
(y)
the disposition of all REO Property acquired upon foreclosure of the last
Transferred Mortgage Loan and the remittance of all funds due hereunder,
or (ii)
mutual consent of the Special Servicer, the Seller and the Master Servicer
in
writing provided such termination is also acceptable to the Rating Agencies.
The
Special Servicer shall comply with the termination procedures set forth in
Sections 8.01, 8.02 and 9.01 hereof. Upon a termination of the Special Servicer
pursuant to this Section 8.02, at the time of the transfer of servicing
hereunder the Special Servicer shall be entitled to reimbursement in full
for
all previously unreimbursed Servicing Advances, Monthly Advances and unpaid
Servicing Fees; provided that the Special Servicer shall deliver to the
successor servicer reasonably acceptable documentation documenting such
Servicing Advances.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01 Successor
to the Special Servicer.
Simultaneously
with the termination of the Special Servicer’s responsibilities and duties under
this Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02, the Master
Servicer shall (i) within 90 days of the Special Servicer’s notice of such
termination, succeed to and assume all of the Special 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 Special Servicer under this
Agreement simultaneously with the termination of the Special Servicer’s
responsibilities, duties and liabilities under this Agreement. Any successor
to
the Special Servicer shall be subject to the approval of the Master Servicer.
Any approval of a successor servicer by the Master Servicer and, to the extent
required by the Trust Agreement, the Trustee, shall, if the successor servicer
is not at that time a servicer of other Transferred Mortgage Loans for the
Trust
Fund, be conditioned upon the receipt by the Master Servicer, 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. 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 Transferred Mortgage Loans as it and such successor shall agree,
provided,
however, that
no
such compensation shall be in excess of the Servicing Fee permitted under
this
Agreement. In the event that the Special Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Special 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 Special 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 Special Servicer of the representations and warranties made pursuant
to Sections 6.01 and the remedies available to the Master Servicer, the Trustee
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 Special Servicer notwithstanding any such resignation or
termination of the Special 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 Special Servicer and that
it
cannot otherwise obtain through reasonable efforts.
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Special Servicer shall prepare, execute
and deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer of
any
Mortgage Notes and the related documents. The Special Servicer shall cooperate
with the Trustee, the Master Servicer or the Seller, as applicable, and such
successor in effecting the termination of the Special 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 Special Servicer to the Custodial Account
or Escrow Account or thereafter received with respect to the Transferred
Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Special Servicer, the Master Servicer and the Seller an
instrument (i) accepting such appointment, wherein the successor shall make
the
representations and warranties set forth in Section 6.01 and provide for
the
same remedies set forth in Sections 6.02, 6.03 and 6.04 herein and (ii) an
assumption of the due and punctual performance and observance of each covenant
and condition to be performed and observed by the Special Servicer under
this
Agreement, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of
the
Special Servicer, with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Special 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 or the Trustee may have against
the Special Servicer arising out of the Special Servicer’s actions or failure to
act prior to any such termination or resignation.
The
Special Servicer shall deliver promptly to the successor servicer the funds
in
the Custodial Account and Escrow Account and all Transferred Mortgage Loan
documents and related documents and statements held by it hereunder and the
Special 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 Special
Servicer.
Upon
a successor’s acceptance of appointment as such, it shall notify the Trustee,
the Seller and Master Servicer and the Depositor of such appointment in
accordance with the procedures set forth in Section 9.04.
The
Seller shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. Costs and expenses incurred in connection with
the
transfer of the servicing responsibilities, including fees for delivering
Servicing Files, shall be paid by (i) the terminated or resigning servicer
if
such termination or resignation is a result of an occurrence of a termination
event under Section 8.01 and (ii) in all other cases by the Trust Fund. Subject
to Section 2.03, 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 Protection
of Confidential Information.
The
Special Servicer shall keep confidential and shall not divulge to any party,
without the Seller’s prior written consent, any nonpublic information pertaining
to the Transferred Mortgage Loans or any borrower thereunder, except to the
extent that it is appropriate for the Special Servicer to do so in working
with
legal counsel, auditors, taxing authorities or other governmental agencies.
The
Special Servicer shall not be responsible for the disclosure of any nonpublic
information by any other party.
All
demands, notices and communications hereunder shall be in writing and shall
be
effective: (a) upon delivery by hand or facsimile; (b) one day after being
deposited with a nationally recognized overnight delivery service; (c) three
days after being deposited in the United States mail, first-class, postage
prepaid, registered or certified, return receipt requested, in each case
addressed to such party as follows (or to such other address as hereafter
may be
designated in writing by such Party to the other Party):
Lehman
Brothers Holdings Inc.
745
Seventh Avenue
8th
Floor
| |
(ii)
|
if
to the Special Servicer:
|
[SPECIAL
SERVICER]
[ADDRESS]
| |
(iii)
|
if
to the Master Servicer:
|
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attention:
Michele Olds
Telephone:
(720) 945-4657
Facsimile:
(720) 945-3968
Wells
Fargo
Bank,
N.A.
P.O.
Box 98
Attention:
Client Services Manager, LMT 2008-6
(or
in
the case of overnight deliveries,
Wells
Fargo Bank, N.A.
9062
Old
Annapolis Road
Attention:
Client Services Manager, LMT 2008-6)
Telephone:
(410) 884-2066
Facsimile:
(410) 715-2380
| |
(v)
|
if
to the Prior Servicer if the Prior Servicer is Aurora:
|
Aurora
Loan Services LLC
10350
Park Meadows Drive
Attention:
Jim Greene, LMT 2008-6
Telephone:
(720) 945-4849
Facsimile:
(720) 945-5735
with
a
copy to:
Aurora
Loan Services LLC
2617
College Park
Attention:
Manager, Loan Administration, LMT 2008-6
Telephone
No.: (308) 220-2104
Telecopier
No.: (308) 220-2982
Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee.
Section
9.05 Severability
Clause.
Any
part, provision, representation or warranty of this Agreement 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 Transferred 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
9.06 No
Personal Solicitation.
From
and after the date hereof, the Special 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 Special Servicer’s
behalf, to personally, by telephone or mail, solicit the borrower or obligor
under any related Transferred Mortgage Loan for any purpose whatsoever,
including to refinance a Transferred Mortgage Loan, in whole or in part,
without
the prior written consent of the Master Servicer. It is understood and agreed
that all rights and benefits relating to the solicitation of any Mortgagors
and
the attendant rights, title and interest in and to the list of such Mortgagors
and data relating to their Mortgages (including insurance renewal dates)
shall
be transferred to the Master Servicer pursuant hereto on the date hereof
and the
Special Servicer shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Special Servicer or any affiliate of the Special Servicer
which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 9.06.
Section
9.07 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts
shall
constitute one and the same instrument.
Section
9.08 Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Seller in the State of New York and shall be deemed to have
been
made in the State of New York. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
9.09 Further
Agreements.
The
Seller and the Special Servicer each agree to execute and deliver to the
other
such reasonable and appropriate additional documents, instruments or agreements
as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section
9.10 Intention
of the Parties.
It
is the intention of the parties that the Seller is conveying, and the Special
Servicer is receiving only a contract for servicing the Transferred Mortgage
Loans. Accordingly, the parties hereby acknowledge that the Trust Fund remains
the sole and absolute owner of the Transferred Mortgage Loans (other than
the
servicing rights) and all rights related thereto.
Section
9.11 Successors
and Assigns; Assignment of Special Servicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Special Servicer, the Seller and the Master Servicer and their respective
successors and assigns.
Section
9.12 Assignment
by the Seller.
The
Seller shall assign 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 the Seller under this Agreement.
This
Agreement may be amended from time to time by the Master Servicer, Special
Servicer and the Seller, with (i) the consent of the Trustee and (ii) the
written agreement signed by the Master Servicer, the Seller and the Special
Servicer; provided
that the party requesting such amendment shall, at its own expense, provide
the
Trustee, 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 Transferred Mortgage Loans and provided, further,
that
prior to any amendment to the loan modification provisions in Section 3.01
notice of such amendment shall be provided to each Rating Agency. Any such
amendment shall be deemed not to adversely affect in any material respect
any
the interest of the Certificateholders in the Transferred Mortgage Loans,
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 any Opinion of Counsel
requested by the Trustee, the Master Servicer and the Seller in connection
with
any such amendment may rely expressly on such confirmation as the basis
therefore).
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.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
9.16 Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree
that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trustee, the Master Servicer and the Depositor receive the
benefit of the provisions (but not the obligations or duties) of this Agreement
as intended third party beneficiaries of this Agreement to the extent of
such
provisions. The Special Servicer shall have the same obligations to the Trustee,
the Master Servicer and the Depositor as if they were parties to this Agreement,
and the Trustee, the Master Servicer and the Depositor shall have the same
rights and remedies to enforce the provisions of this Agreement as if it
was a
party to this Agreement. The Special 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 and obligations of the Trustee, the Depositor and the
Master Servicer hereunder (other than the right to indemnification) shall
terminate upon the termination of the Trust Fund pursuant to the Trust
Agreement).
Section
9.17 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean by reason of enumeration.
Section
9.18 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
9.19 Mortgage
Loan-Level Reports.
The
Special Servicer shall be deemed to represent and warrant solely to S&P, at
the time the information contained in the mortgage loan-level reports delivered
to the Master Servicer pursuant to Section 4.02 above, the information set
forth
in such reports are true and correct in all material respects. Upon discovery
by
the Special Servicer of a material inaccuracy in such mortgage loan-level
reports, the Special Servicer shall give prompt written notice to the Master
Servicer and to the Seller, and (i) the Seller shall give prompt written
notice
to S&P and (ii) the Special Servicer shall deliver corrected mortgage
loan-level reports to the Master Servicer. Notwithstanding the foregoing,
the
Special Servicer shall have no liability to S&P or any other Person for any
claims, damages, liabilities, expenses or any other losses of any kind arising
out of, or relating to, the inaccuracy of any of the information contained
in
such reports or a breach of the representation and warranty set forth in
this
Section 9.19.
IN
WITNESS WHEREOF, the Special 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.
LEHMAN
BROTHERS HOLDINGS INC.,
Title:
Authorized Signatory
[SPECIAL
SERVICER],
Aurora
Loan Services LLC,
Acknowledged
By:
[TRUSTEE],
as
Trustee and not individually
Name:
Title:
Acknowledged
By:
STRUCTURED
ASSET SECURITIES CORPORATION,
Name:
Nicholas Stimola
Title:
Vice President
EXHIBIT
A
FORM
OF
NOTICE OF TRANSFER
On
this
___ day of _____, 200_, Aurora Loan Services LLC, [as prior servicer (the
“Prior
Servicer”)][If
Aurora is the Prior Servicer][as
master servicer (the “Master Servicer”)][If
Aurora is not the Prior Servicer],
pursuant to that certain Special Servicing Agreement (the “Agreement”), dated as
of [AGREEDATE], between Lehman Brothers Holdings Inc., as seller (the “Seller”),
Aurora Loan Services LLC, as master servicer and [SPECIAL SERVICER], as special
servicer (the “Special Servicer”), does hereby transfer to the Special Servicer
[on behalf of the Seller][If
Aurora is not the Prior Servicer],
effective as of the Servicing Transfer Date set forth below, the servicing
responsibilities related to the mortgage loans (the “Transferred Mortgage
Loans”) listed on the Transferred Mortgage Loan Schedule attached hereto as
Schedule 1 [(which schedule shall include the related Prior
Servicer).][if
Aurora is not the Prior Servicer] From
and
after the Servicing Transfer Date, the Special Servicer assumes all servicing
responsibilities related to the Transferred Mortgage Loans in accordance
with
the terms and conditions of the Agreement. [The contents of each Servicing
File
in the possession of the Prior Servicer on the related Servicing Transfer
Date
required to be delivered to service the related Transferred Mortgage Loan
in
accordance with this Agreement have been or shall be delivered to the Special
Servicer by the Prior Servicer in accordance with the terms of the
Agreement.][If
Aurora is the Prior Servicer] [The
Master Servicer shall use commercially reasonable efforts to cause the related
Prior Servicer(s) to deliver to the Special Servicer the contents of each
Servicing File required to be delivered to service the related Transferred
Mortgage Loan in accordance with the terms of the Agreement.][If
Aurora is the Prior Servicer]
With
respect to the Transferred Mortgage Loans, the Servicing Transfer Date shall
be
_____________.
All
other
terms and conditions in this transaction shall be governed by the
Agreement.
Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to those terms in the Agreement.
Aurora
Loan Services LLC,
[as
Prior
Servicer][If
Aurora is the Prior Servicer][as
Master Servicer][if
Aurora is not the Prior Servicer]
ACKNOWLEDGED
BY:
[SPECIAL
SERVICER],
as
Special Servicer
Name:
Title:
SCHEDULE
1
TRANSFERRED
MORTGAGE LOAN SCHEDULE
EXHIBIT
B
CUSTODIAL
ACCOUNT CERTIFICATION NOTICE
______________
__, ____
As
Special Servicer under the Special Servicing Agreement, dated as of [AGREEDATE]
(the “Agreement”), we hereby authorize and request you to establish an account,
as a Custodial Account pursuant to Section 3.03 of the Agreement, to be
designated as “[SPECIAL SERVICER] in trust for [TRUSTEE], as Trustee for [SERIES
NO.].” All deposits in the account shall be subject to withdrawal therefrom by
order signed by the Special Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
[SPECIAL
SERVICER]
Special
Servicer
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
Depository
EXHIBIT
C
ESCROW
ACCOUNT CERTIFICATION NOTICE
______________
___, ____
As
Special Servicer under the Special Servicing Agreement, dated as of [AGREEDATE]
(the “Agreement”), we hereby authorize and request you to establish an account,
as an Escrow Account pursuant to Section 3.05 of the Agreement, to be designated
as “[SPECIAL SERVICER] in trust for [TRUSTEE], as Trustee for [SERIES NO.].” All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Special Servicer. This letter is submitted to you in duplicate. Please
execute and return one original to us.
[SPECIAL
SERVICER]
Special
Servicer
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
Depository
EXHIBIT
D-1
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
TRAIL 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 AMOUNT, .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 AMOUNT, .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 CHARGEOFF
|
|
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
| |
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
|
|
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 .00 IF PAIDOFF
|
Number
two decimals
|
EXHIBIT
D-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
| |
|
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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
NOE submitted date
|
DATE(MM/DD/YYYY)
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
|
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.
|
|
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.
|
|
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)
|
|
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.
|
|
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
|
|
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
|
EXHIBIT
D-3
FORM
OF
LOAN LOSS REPORT
|
Column
|
Applicability
|
Field
Name
|
Field
Definition
|
Format
|
|
A
|
All
|
Servicer
Loan Number
|
Individual
number that uniquely identifies loan as defined by
Servicer
|
VARCHAR2(15)
|
|
B
|
All
|
Aurora
Loan Number
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing
|
NUMBER(9)
|
|
C
|
All
|
Liquidation
Date
|
Date
the loan was liquidated on the Servicers servicing system.
|
DATE(MM/DD/YYYY)
|
|
D
|
All
|
Servicer
Cut-off Date
|
Reporting
cycle cutoff date of loan liquidation
|
DATE(MM/DD/YYYY)
|
|
E
|
All
|
Loan
type
|
Type
of loan being serviced generally defined by the existence of certain
types
of insurance. (ie: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.)
|
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
|
|
F
|
All
|
Stop
Advance Date
|
Date
the servicer stopped advancing P&I on a Scheduled/Scheduled
loan.
|
DATE(MM/DD/YYYY)
|
|
G
|
All
|
Stop
Interest Amount
|
Amount
of Interest Accrued and not advanced by the servicer.
|
NUMBER(10,2)
|
|
H
|
All
|
Date
of Last Delinquency
|
The
Last Paid Installment (LPI) date.
|
DATE(MM/DD/YYYY)
|
|
I
|
All
|
Resolution
Type
|
Description
of the process to resolve the delinquency. CH = Charge Off DI =
Deed in
Lieu MO = Modification PC = Partial Claim SH = Short Sale FC =
Foreclosure
TP = Third Party Sale FB = Forbearance Agreement RD= Redemption
NS = Note
Sale SP = Short Pay
|
VARCHAR2(15)
|
|
J
|
All
|
Resolution
Start Date
|
Date
the process described in Resolution Type started.
|
DATE(MM/DD/YYYY)
|
|
K
|
All
|
Resolution
Completion Date
|
Date
the process described in Resolution Type was completed.
|
DATE(MM/DD/YYYY)
|
|
L
|
All
|
Forbearance
Start Date
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and the Servicer
|
DATE(MM/DD/YYYY)
|
|
M
|
All
|
Forbearance
End Date
|
The
Servicer defined date upon which the Servicer considers that the
plan was
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled
|
DATE(MM/DD/YYYY)
|
|
N
|
All
|
BK
Filing Date
|
The
actual date bankruptcy petition is filed with the court
|
DATE(MM/DD/YYYY)
|
|
O
|
All
|
BK
Relief/ Dismissal Date
|
Actual
date of dismissal or relief from stay order is entered
|
DATE(MM/DD/YYYY)
|
|
P
|
All
|
Bk
Discharged Date
|
Actual
date discharge order is entered in the bankruptcy docket
|
DATE(MM/DD/YYYY)
|
|
Q
|
All
|
1st
Legal Date
|
Actual
date the foreclosure first legal action is recorded, as defined
by state
statute
|
DATE(MM/DD/YYYY)
|
|
R
|
All
|
Foreclosure
Held Date
|
Actual
date the foreclosure date was held
|
DATE(MM/DD/YYYY)
|
|
S
|
All
|
Clear
Title Date
|
Actual
date that the property became marketable
|
DATE(MM/DD/YYYY)
|
|
T
|
FHA/VA
|
Conveyance
Date
|
Date
the insuring agency accepted title of the property held as collateral
for
the mortgage loan.
|
DATE(MM/DD/YYYY)
|
|
U
|
FHA
|
Part
A Settlement Date
|
Date
the Part A Claim to HUD was paid (The Settlement date noted on
the EOB
provided by HUD).
|
DATE(MM/DD/YYYY)
|
|
V
|
VA
|
VA
Max Guaranty %
|
Maximum
percentage VA will insure in the event of a no bid
|
NUMBER(6,5)
|
|
W
|
VA
|
VA
Interest Cut Off Date
|
Date
designated by the VA that Interest will be paid through.
|
DATE(MM/DD/YYYY)
|
|
X
|
VA
|
VA
Buydown
|
The
amount of money held by the servicer to be used towards payments.
Not
buydown funds for the VA to issue a bid
|
NUMBER(10,2)
|
|
Y
|
All
Loans except FHA/VA
|
REO
Sale/Closing Date
|
Actual
date that the sale of the REO property closed escrow.
|
DATE(MM/DD/YYYY)
|
|
Z
|
All
|
Principle
Advance Amount
|
Amount
of monthly advances made to the master servicer by the servicer
attributable to Principal.
|
NUMBER(16,2)
|
|
AA
|
All
|
Interest
Advance Amount
|
Monthly
advances made to the master servicer by the servicer attributable
to net
interest.
|
NUMBER(9,2)
|
|
AB
|
All
|
Interest
Accrued
|
Delinquent
interest that accrued from date of delinquency to liquidation at
note
rate.
|
NUMBER(10,2)
|
|
AC
|
All
|
Bankruptcy
Fees
|
Sum
of bankruptcy attorney fees paid to a third party
|
NUMBER(10,2)
|
|
AD
|
All
|
Bankruptcy
Costs
|
Sum
of bankruptcy costs paid to a third party related to a bankruptcy
filing
involving the borrower or subject property.
|
NUMBER(10,2)
|
|
AE
|
All
|
Foreclosure
Fees
|
Sum
of foreclosure attorney fees paid to a third party
|
NUMBER(10,2)
|
|
AF
|
All
|
Foreclosure
Costs
|
Sum
of foreclosure costs paid to a third party
|
NUMBER(10,2)
|
|
AG
|
All
|
Eviction
Fees
|
Sum
of eviction attorney fees paid to a third party
|
NUMBER(10,2)
|
|
AH
|
All
|
Eviction
Costs
|
Sum
eviction costs paid to a third party
|
NUMBER(10,2)
|
|
AI
|
All
|
Appraisal
Costs
|
Sum
of fees paid in connection with obtaining property
valuation
|
NUMBER(10,2)
|
|
AJ
|
All
|
Preservation
Costs
|
Sum
of preservation and protection expenses
|
NUMBER(10,2)
|
|
AK
|
All
|
Utility
Costs
|
Funds
advanced by Servicer for required utility services at the
property.
|
NUMBER(10,2)
|
|
AL
|
All
|
HOA
Costs
|
Funds
advanced by Servicer for homeowner's association dues
|
NUMBER(10,2)
|
|
AM
|
All
|
Hazard
Refunds
|
Amount
of refunds of Hazard Premiums paid.
|
NUMBER(10,2)
|
|
AN
|
All
|
Hazard
Premiums
|
Funds
advanced by Servicer for Hazard Insurance on the property held
as
collateral for the mortgage.
|
NUMBER(10,2)
|
|
AO
|
All
|
Real
Estate Taxes
|
Funds
advanced by Servicer for real estate taxes
|
NUMBER(10,2)
|
|
AP
|
All
|
Escrow
Balance
|
Positive
balance remaining in the escrow account at time of
liquidation
|
NUMBER(10,2)
|
|
AQ
|
All
|
Restricted
Escrow
|
Amount
of funds held in the Restricted Escrow account.
|
NUMBER(10,2)
|
|
AR
|
All
|
Escrow
Advance Amount
|
Negative
escrow balance in the escrow account at time of
liquidation
|
NUMBER(10,2)
|
|
AS
|
All
|
Suspense
Balance
|
Amount
of funds held in the Suspense account (Positive Number).
|
NUMBER(10,2)
|
|
AT
|
All
Loans except FHA/VA
|
REO/Sale
Net Proceeds
|
The
actual REO sales price less the closing costs paid. The net proceeds
must
match HUD1 settlement statement
|
NUMBER(10,2)
|
|
AU
|
Third
Party Sale Only
|
Third
Party Sale Proceeds
|
Funds
received in connection with the sale of the property held as collateral
for the mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
AV
|
MI
|
MI
Claimed Amount Filed
|
The
amount of the claim that was filed by the Servicer with the MI
company
|
NUMBER(15,2)
|
|
AW
|
MI
|
MI
Claimed File Date
|
Actual
date that the claim was submitted to the MI company
|
DATE(MM/DD/YYYY)
|
|
AX
|
MI
|
Amount
of MI Proceeds Received
|
The
amount of proceeds received from the MI company
|
NUMBER(15,2)
|
|
AY
|
MI
|
MI
Proceeds Received Date
|
Actual
date that the funds were received from the MI company as a result
of
transmitting an MI claim
|
DATE(MM/DD/YYYY)
|
|
AZ
|
FHA/VA
|
Interest
on Advances
|
Interest
paid by HUD/VA or MI on the amounts advanced related to the liquidation
of
the property.
|
NUMBER(16,2)
|
|
BA
|
FHA/VA
|
Initial
Claim Proceeds
|
Funds
received in connection with the conveyance of the property to the
insuring
agency (Positive Number).
|
NUMBER(10,2)
|
|
BB
|
FHA/VA
|
Final
Claim Proceeds
|
Final
Claim funds received from the insuring agency (HUD/VA).
|
NUMBER(10,2)
|
|
BC
|
FHA/VA
|
Servicer
Retained Loss
|
The
total amount of the
Final Loss
the Servicer will take, due to Interest/Expense Curtailments by
HUD/VA
(This would include Advances not claimed to HUD/VA or MI due to
servicer
error) (Positive Number).
|
NUMBER(10,2)
|
|
BD
|
RF
Securities Only
|
Estimated
Recovery
|
The
amount of Proceeds estimated to be received from your HUD Part
B or VA
claim if not already received. (For RF Deals only)
|
NUMBER(10,2)
|
|
BE
|
All
|
Initial
Realized Loss
|
Realized
loss passed in the initial month of liquidation
|
NUMBER(10,2)
|
|
BF
|
All
|
Cumulative
Realized Loss
|
The
sum of the initial loss plus any subsequent expense or gain accrued
on the
asset
|
NUMBER(10,2)
|
|
BG
|
All
|
Total
Proceeds
|
Any
proceeds used to liquidate the asset. The Sum of: Sales Proceeds,
Initial
Claim Proceeds, Final Claim Proceeds, Other Claim Proceeds, Replacement
Reserve, Restricted Escrow, Suspense Balance (Positive Number).
|
NUMBER(10,2)
|
|
BH
|
All
|
Fraud
Loss
|
Please
refer to exhibit C for definition
|
NUMBER(10,2)
|
|
BI
|
All
|
Special
Hazard Loss
|
Please
refer to exhibit C for definition
|
NUMBER(10,2)
|
|
BJ
|
All
|
Investor
Code
|
Servicer's
Investor Code
|
VARCHAR2(15)
|
EXHIBIT
D-4
FORM
OF
MODIFIED LOAN REPORT
|
Data
Reporting Field
|
Description
|
|
Modified
Beginning Balance
|
Beginning
actual balance owed by the borrower as of the Modification Effective
Date.
|
|
Modified
Interest Rate Effective Date
|
The
date the new Interest Rate is in effect under the modified
terms
|
|
Modified
Payment Amount Effective Date
|
The
date the new Payment Amount is in effect under the modified
terms
|
|
Ending
Actual Balance
|
Actual
outstanding principal balance as of the monthly cutoff
date.
|
|
Ending
Scheduled Balance
|
Scheduled
principal balance as of the monthly cutoff date.
|
|
Total
Capitalized Amount
|
Total
amount owing under the loan and added to the Ending Actual Balance.
|
| |
|
|
Pre-Modification
Interest Rate
|
Interest
rate of the loan immediately preceding the Modification Effective
Date.
|
|
Post-Modification
Interest Rate
|
Interest
rate of the loan as of the Modification Effective Date.
|
|
Pre-Modification
P&I Payment
|
Total
principal and interest payment amount preceding the Modification
Effective
Date.
|
|
Post-Modification
P&I Payment
|
Total
principal and interest payment amount as of the Modification
Effective
Date.
|
|
Pre-Modification
Maturity Date
|
Original
maturity date of the loan. (If there is more than one modification
over
the life of the loan, subsequent “pre-modification maturity date” would
reflect the value immediately preceding the most recent Modification
Effective Date reported.)
|
|
Post-Modification
Maturity Date
|
Maturity
date of the loan as of the Modification Effective Date.
|
|
Pre-Modification
Interest Reset Period*
|
Original
duration of the interest reset period of the loan.
|
|
Post-
Modification Interest Reset Period*
|
Duration
of the Interest Reset Period of the loan as of the Modification
Effective
Date.
|
|
Pre
Modification Payment Change Date*
|
Payment
change date preceding the modification
|
|
Post-
Modification Payment Change Date*
|
Payment
change date as of the modification effective date
|
|
Pre-Modification
Initial Interest Reset Date*
|
First
interest reset date under the original terms of the
loan.
|
|
Post-Modification
Initial Interest Reset Date, and Next Reset Date*
|
Initial
Reset Date as of the Modification Effective Date, and the subsequent
reset
date.
|
|
Post-
Modification Margin*
|
Margin
after the Modification
|
|
Post-
Modification Initial Max Interest Rate Increase*
|
First
interest rate change maximum increase
|
|
Post-
Modification Initial Max Interest Rate Decrease*
|
First
interest rate change maximum decrease
|
|
Post-
Modification Max Interest Rate Increase*
|
Maximum
interest rate increase after the first rate
change
|
|
Data
Reporting Field
|
Description
|
|
Post-
Modification Max Interest Rate Decrease*
|
Minimum
interest rate decrease after the first rate change
|
|
Maximum
Interest Rate Life Cap*
|
Maximum
interest rate lifetime cap
|
|
Minimum
Interest Rate Life Cap*
|
Minimum
interest rate lifetime cap
|
|
Fixed
to ARM (Y/N)
|
Change
in loan status from fixed rate to ARM.
|
|
ARM
to Fixed (Y/N)
|
Change
in loan status from ARM to fixed rate.
|
|
IO
to Fully Amortizing (Y/N)
|
Change
in loan status from IO to fully amortizing.
|
|
Fully
Amortizing to IO (Y/N)
|
Change
in loan status from fully amortizing to IO.
|
|
Balloon
Payment Amount
|
Amount
of cumulative balloon principal payment due.
|
|
Balloon
Payment Date
|
Date
on which Balloon Payment Amount is due.
|
|
Forgiven
Principal Amount
|
Amount
of principal forgiven.
|
|
Forgiven
Interest Amount
|
Gross
amount of interest forgiven.
|
| |
|
|
*Applicable
to adjustable-rate mortgages only.
|
|
EXHIBIT
E
[SERIES
NO.] TRUST AGREEMENT
EXHIBIT
F
RESERVED
EXHIBIT
G
[Date]
FORM
OF
ANNUAL CERTIFICATION
| |
Re:
|
The
Special Servicing Agreement dated as of [DATE] (the “Agreement”), by and
among Lehman Brothers Holdings Inc., [SPECIAL SERVICER], as special
servicer, Aurora Loan Services LLC, as master servicer, and acknowledged
by [TRUSTEE], as Trustee (the “Trustee”).
|
I,
[identify the certifying individual], the [title] of the Special 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 special servicer compliance statement of the Special 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 Special
Servicer during 200[ ] that were delivered by the Special 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 Special Servicer
as
special 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 Special Servicer has fulfilled its obligations under
the
Agreement in all material respects; and
(5) The
Compliance Statement required to be delivered by the Special Servicer pursuant
to the Agreement, and the Servicing Assessment and Attestation Report required
to be provided by the Special 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:
EXHIBIT
H
RECORDING
REQUESTED BY
AND
WHEN
RECORDED MAIL TO:
[SPECIAL
SERVICER]
[ADDRESS]
This
Limited Power of Attorney is made as of _____________ by _________________,
having an office at _________________________________ (“Grantee”), in favor of
[SPECIAL SERVICER], a [ENTITY] having an office at [ADDRESS] (“Special
Servicer”).
WHEREAS,
[TRUSTEE] (“Trustee”)[IF TRUSTEE IS NOT THE GRANTEE][Grantee] has acknowledged
that certain Special Servicing Agreement dated as of [DATE] (the “Special
Servicing Agreement”), by and among the Special Servicer, Aurora Loan Services
LLC and Lehman Brothers Holdings Inc., pursuant to which Special Servicer
agreed
to certain terms governing the servicing of certain mortgage loans (“Transferred
Mortgage Loans”) by Special Servicer on behalf of [Trustee][Grantee];
and
WHEREAS,
Grantee[, Trustee] and Special Servicer desire that Grantee execute and deliver
this Limited Power of Attorney in order to facilitate the servicing of the
Transferred Mortgage Loans by Special Servicer; and
NOW
THEREFORE, Grantee does hereby appoint, subject to and in accordance with
the
Special Servicing Agreement, Special Servicer, as its attorney-in-fact, in
its
name, place and stead, in connection with all mortgage loans and REO properties
subject to the terms of the Agreement for the purpose of performing all acts
and
executing all documents in the name of the [Trustee][Grantee] as may be
customarily and reasonably necessary and appropriate to effectuate the following
enumerated transactions in respect of any of the mortgages or deeds of trust
(the “Mortgages” and the “Deeds of Trust” respectively) and promissory notes
secured thereby (the “Mortgage Notes”) for which [Trustee][Grantee] is the owner
(whether the undersigned is named therein as mortgagee or beneficiary or
has
become mortgagee by virtue of endorsement of the Mortgage Note secured by
any
such Mortgage or Deed of Trust) and for which the Special Servicer is performing
sub-servicing activities all subject to the terms of the Special Servicing
Agreement.
[STRIKE
ALL PARAGRAPHS BELOW WHICH DO NOT APPLY]
This
appointment shall apply to the following enumerated transactions
only:
| |
1.
|
The
modification or rerecording of a Mortgage or Deed of Trust, where
said
modification or rerecording is for the purpose of correcting the
Mortgage
or Deed of Trust to conform same to the original intent of the
parties
thereto or to correct title errors discovered after such title
insurance
was issued and said modification or rerecording, in either instance,
does
not adversely affect the lien of the Mortgage or Deed of Trust
as
insured.
|
| |
2.
|
The
subordination of the lien of a Mortgage or Deed of Trust to an
easement in
favor of a public utility company of a United States governmental
agency
or unit with powers of eminent domain; this section shall include,
without
limitation, the execution of partial satisfactions/releases, partial
reconveyances or the execution or requests to trustees to accomplish
same.
|
| |
3.
|
The
conveyance of the properties to the mortgage insurer, or the closing
of
the title to the property to be acquired as real estate owned,
or
conveyance of title to real estate
owned.
|
| |
4.
|
The
completion of loan assumption
agreements.
|
| |
5.
|
The
full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
|
| |
6.
|
The
assignment of any Mortgage or Deed of Trust and the related Mortgage
Note,
in connection with the repurchase of the mortgage loan secured
and
evidenced thereby.
|
| |
7.
|
The
full assignment of a Mortgage or Deed of Trust upon payment and
discharge
of all sums secured thereby in conjunction with the refinancing
thereof,
including, without limitation, the assignment of the related Mortgage
Note.
|
| |
8.
|
With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking
of a
deed in lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the
following
acts:
|
| |
a.
|
the
substitution of trustee(s) serving under a Deed of Trust, in accordance
with state law and the Deed of
Trust;
|
| |
b.
|
the
preparation and issuance of statements of breach or
non-performance;
|
| |
c.
|
the
preparation and filing of notices of default and/or notices of
sale
|
| |
d.
|
the
cancellation/rescission of notices of default and/or notices of
sale;
|
| |
e.
|
the
taking of a deed in lieu of foreclosure;
and
|
| |
f.
|
the
preparation and execution of such other documents and performance
such
other actions as may be necessary under the terms of the Mortgage,
Deed of
Trust or state law to expeditiously complete said transactions
in
paragraphs 8(a) through 8(e),
above.
|
The
undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this
Limited
Power of Attorney, each subject to the terms and conditions set forth in
the
Agreement and in accordance with the standard of care set forth in the Agreement
as fully as the undersigned might or could do, and hereby does ratify and
confirm to all that said Attorney-in-Fact shall lawfully do or cause to be
done
by authority hereof. This Limited Power of Attorney shall be effective as
of
____________ ___, _____, and shall terminate on _____________ ___,
_______.
Third
parties without actual notice may rely upon the exercise of the power granted
under this Limited Power of Attorney; and may be satisfied that this Limited
Power of Attorney shall continue in full force and effect until ____________
____, _____ and has not been revoked unless an instrument of revocation has
been
made in writing by the undersigned.
IN
WITNESS WHEREOF, the Grantee has caused its corporate seal to be hereto affixed
and these presents to be signed and acknowledged in its name and behalf by
____________, its duly elected and authorized ______________ this ___ day
of
____________, _____.
[GRANTEE]
STATE
OF
__________________
COUNTY
OF
________________
On
____________ __, _____, before me, the undersigned, a Notary Public in and
for
said state, personally appeared _______________ of _________________________,
personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that [she/he] executed that same in [her/his]
authorized capacity, and that by [her/his] signature on the instrument the
entity upon behalf of which the person acted and executed the instrument.
WITNESS
my hand and official seal.
______________________________
Notary
Public
EXHIBIT
I
TRANSFER
INSTRUCTIONS
Conversion
data can be supplied in 3 formats:
1. If
it is
determined that this type of conversion is advantageous to both parties the
format (Microsoft Excel) will be furnished.
2. Preliminary
Mortgage Loan data should be provided by the 12th Business Day of each month
for
the related Servicing Transfer Date.
3. Final
data should be provided within 2 Business Days after the related Servicing
Transfer Date.
4. A
trial
balance must be provided for both preliminary and final.
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B.
|
Tape
to Tape conversion
|
If
it is
determined that this type of conversion is advantageous to both parties the
details will be mutually agreed to by the Prior Servicer and the Special
Servicer.
Preliminary
tape should be provided by the 12th Business Day of each month for the related
Servicing Transfer Date.
Final
data tape should be provided within three Business Days after the related
Servicing Transfer Date.
A
trial
balance must be provided for both preliminary and final.
II. HOMEOWNER
NOTIFICATION
| |
A.
|
The
mortgagor notification (good-bye letter) must be mailed by the
close of
business on the 10th
Business Day of the month for the related Servicing Transfer Date.
A copy
of your good-bye letter must be faxed to the Loan Transfer Dept.
(fax
number [FAX NUMBER]) for approval prior to
mailing.
|
| |
B.
|
Electronic
file or hard copies of your mortgagor notification letters should
be
provided to LLS within 5 Business Days after the related Servicing
Transfer Date.
|
| |
C.
|
INFORMATION
FOR NOTIFICATION LETTERS
|
|
Hours
of operation:
|
[HOURS]
|
|
Customer
Service Toll Free Number:
|
[TOLL
FREE NUMBER]
|
|
Correspondence
Address:
|
[SPECIAL
SERVICER]
[ADDRESS]
|
|
Payment
Address:
|
[SPECIAL
SERVICER]
[ADDRESS]
|
III. HAZARD
/
FLOOD INSURANCE
| |
A.
|
Available
Hazard / Flood insurance policies or other proof of insurance will
be
included as part of the Servicing File and identified with your
loan
number.
|
| |
B.
|
Please
request a change to the mortgagee clause as
follows:
|
[SPECIAL
SERVICER]
Its
Successors or Assigns
[ADDRESS]
| |
C.
|
Copies
of the mortgagee clause change requests should be provided to
LLS.
|
| |
D.
|
Any
unpaid policies, expiration notices, cancellation notices, loans
with
expired policies should be properly identified, sorted and marked
for
special handling.
|
| |
E.
|
Individual
loan insurance records showing payee (name and address), due dates,
frequency of payment, next due date, last paid date and last paid
amount
should be provided in electronic
format.
|
| |
F.
|
Provide
a list of loans under your “force place coverage” program. When Aurora
attained as the Prior Servicer, forced placed coverage will terminate
as
of the related Servicing Transfer
Date.
|
| |
G.
|
Insurance
loss drafts should provide all documentation on the current
status.
|
| |
H.
|
Provide
a listing including the following items on FHA Loans with a monthly
premium.
|
6. Total
MIP
paid to date
7. Next
month the premium is due
| |
I.
|
Provide
a listing including the following items on FHA loans that the full
premium
was paid up front.
|
4. Amount
of
prepaid premium
| |
J.
|
Provide
a listing of all FHA Uninsured
loans.
|
| |
K.
|
Provide
a listing of all FHA 235 loans.
|
| |
M.
|
When
possible, electronic HUD Form 92080 should be completed and submitted
to
HUD with LLS’ HUD mortgagee number (72313).
|
| |
N.
|
Individual
mortgage loan MI certificates are to be maintained in the custodial
file
held by the applicable Custodian. To the extent a copy of such
MI
certificate is maintained as part of the Servicing File, it will
be
provided.
|
| |
O.
|
Provide
copies of the notification to the PMI companies requesting a change
of
servicer to LLS. No MI coverage is to be cancelled by the Prior
Servicer.
|
| |
P.
|
Listing
of all loans with PMI to include:
|
3. PMI
certificate number
6. Indicate
lender or borrower paid (a separate data file or report may be provided for
loans with lender paid premiums.
7. Percentage
of Coverage
| |
Q.
|
Homeowner
Protection Act of 1998.
|
1. Loans
originated after July 29, 1999: Provide copies of original disclosure notice
produced at origination of loan. *
2. Loans
originated prior to July 29, 1999: Provide the annual disclosure notices
supplied to borrowers.*
*
These
are to be provided to the extent available in the Servicing File.
| |
R.
|
Listing
of loans that have Pool Insurance. If loan has Pool Insurance supply
name,
address and phone number of mortgage insurance
company.
|
| |
S.
|
Listing
of loans that have Pool Insurance and private mortgage
insurance.
|
| |
T.
|
Individual
loan tax records showing payee (name and address), due dates, frequency
of
payment, next due date, last paid date and last paid amount along
with tax
contract numbers and vendor information should be provided in electronic
format.
|
| |
U.
|
As
Prior Servicer, Aurora is to notify First American of the transfer
of
servicing and the related tax service contracts along with the
request for
a change of servicer to LLS under the following vendor numbers
(Transamerica-2489, First American-56353, Lereta-65000, Fidelity-2059).
|
| |
V.
|
All
property taxes for which tax bills have been released, received
and that
are due and payable should be paid prior to the related Servicing
Transfer
Date.
|
| |
W.
|
Provide
a listing of any loans with known delinquent taxes containing the
pertinent information as of the related Servicing Transfer
Date.
|
| |
X.
|
Only
prepaid optional insurance should be provided to
LLS.
|
| |
Y.
|
All
prepaid optional insurance should include the following
information.
|
| |
Z.
|
Copies
of the notification sent to the insurance
companies.
|
| |
AA.
|
Copy
of the final remittance report to the investor including a trial
balance
as of cut-off date.
|
| |
BB.
|
Provide
a list of all simple interest
loans.
|
| |
CC.
|
Provide
a list of all loans currently on ACH Draft. The borrower to be
notified
that their ACH Draft will be discontinued in your good bye
letter.
|
| |
DD.
|
Provide
list of all loans with corporate
advances.
|
| |
EE.
|
Back-up
documentation must be supplied for any loan with a corporate advance.
The
documentation must balance to the advance amount and must be furnished
in
an electronic format within five Business Days of the related Servicing
Transfer Date.
|
| |
FF.
|
Back-up
documentation must be received within five Business Days of the
related
Servicing Transfer Date .
|
| |
GG.
|
All
MERS loans must be moved to correct ORG ID to coincide with
transfer.
|
| |
HH.
|
The
batch number must be supplied to
Litton.
|
| |
II.
|
The
MIN number must be supplied for each loan transferred on
MERS.
|
| |
JJ.
|
Provide
a list of loans that have prepayment penalty provisions in the
mortgage.
|
| |
KK.
|
Loan
level prepayment penalty information must be provided on any loan
with a
prepayment penalty. This information should be provided in an electronic
file or hard copy.
|
| |
LL.
|
Unprocessed
payoff funds should be accompanied by a copy of the payoff
quotation.
|
| |
MM.
|
Information
should be furnished on any issued and unexpired payoff statements
or
assumptions in process.
|
| |
NN.
|
Information
on any incomplete partial release should be
provided.
|
XII. ADJUSTABLE
RATE MORTGAGES / GPM / BUYDOWNS / BALLOONS
| |
OO.
|
To
the extent available to the Prior Servicer, provide individual
loan
historical rate and P&I
changes.
|
| |
PP.
|
ARM
provisions for each loan within the
portfolio
|
| |
QQ.
|
Provide
list of ARM Plans and definitions.
|
| |
RR.
|
Provide
a list of loans that are step rate and/or GPM mortgages with status
of
account.
|
| |
SS.
|
Provide
a list of loans that are buydowns with status of
account.
|
| |
TT.
|
Provide
a list of balloon loans, their maturity dates, amortization term
and if
they have a convertible option. If a loan has reached its maturity
date
prior to conversion furnish the current
status.
|
| |
UU.
|
Provide
a list of loans that are Soldiers and Sailors and supporting documentation
as required by the servicing
agreements.
|
| |
VV.
|
A
list of contact people for the Foreclosure, Claims and Bankruptcy
area
needs to be provided to Litton.
|
| |
WW.
|
A
listing of loans in foreclosure as provided by the MSP servicing
release
workstation within three Business Days of the related Servicing
Transfer
Date
|
| |
XX.
|
Name
and address listing of foreclosure attorneys report should be provided
electronically (or the transfer of servicing must be reported to
the
applicable foreclosure attorneys) within 3 Business Days of the
related
Servicing Transfer Date.
|
| |
YY.
|
Listing
of any loans pending a Refunding to the Va., HUD Assignment, approved
Dil,
Presale or Partial Claim/ Preliminary report should be provided
within 3
Business Days of the related Servicing Transfer
Date.
|
| |
ZZ.
|
Listing
of any loan currently in non-foreclosure and non-bankruptcy related
litigation to be provided within three Business Days of the related
Servicing Transfer Date.
|
| |
AAA.
|
Listing
of all loans with escrow advances.
|
| |
BBB.
|
Report
of delinquent loans 120 days or older that are not active in foreclosure
and or bankruptcy. Copies of breach letters will be provided as
part of
the Servicing File.
|
| |
CCC.
|
Vendor
invoices received by the Prior Servicer at least one Business Day
prior to
the related Servicing Transfer Date are paid by the Prior
Servicer.
|
| |
DDD.
|
Report
of any loans on a stipulation or payment agreement and a copy of
the
executed agreement to be included in the Servicing
File.
|
| |
EEE.
|
The
name of the beneficiary they are used for
foreclosures.
|
| |
FFF.
|
Files
for foreclosures, bankruptcies, claims, breached loans, repayment
plans
and active loss mitigation accounts must be sorted and identified
separately by marking the front of the file or boxing
separately.
|
| |
GGG.
|
Trailing
correspondence should be sent weekly with the exception of checks
or money
orders which should be forwarded daily for the first 60 days following
the
related Servicing Transfer Date. Thereafter, the Prior Servicer
is to
return all such received payments to the
remitter(s)/borrower(s).
|
| |
HHH.
|
Foreclosure
files should be sent to the following
address:
|
[SPECIAL
SERVICER]
[ADDRESS]
| |
III.
|
Listing
of loans active in bankruptcy, sorted by state, including the type
of
Chapter filed. Aurora as Prior Servicer will provide the Bankruptcy
Service Release report within 3 Business Days after the related
Servicing
Transfer Date.
|
| |
JJJ.
|
Listing
showing names and address of the debtor’s attorney, Seller’s attorney and
Bankruptcy Trustee. A report should be provided within 3 Business
Days of
the related Servicing Transfer
Date.
|
| |
KKK.
|
Listing
of pending relief of stays.
|
| |
LLL.
|
Loan
level listing of all loans with agreed orders or stipulation agreements
with the current status on each of the
cases.
|
| |
MMM.
|
Copies
of letters to bankruptcy attorney advising of the
transfer.
|
| |
NNN.
|
List
of any cramdowns.
|
| |
OOO.
|
Files
should be sorted and clearly marked for special
handling.
|
| |
PPP.
|
Provide
MSP service release workstation reports that reflect bankruptcy
status
for.
|
| |
QQQ.
|
Provide
a status report that includes attorney’s name and phone number, chapter,
case number, BK billing date, POC date, prepetition due date, post
petition due date and motion status if filed as of the related
Servicing
Transfer Date.
|
| |
RRR.
|
Bankruptcy
files should be sent to the following
address:
|
[SPECIAL
SERVICER]
[ADDRESS]
1. Recent
Property Valuation
3. HUD-1
Settlement Statement, estimated
4. Realtor/Broker
contact information
6. Borrower
hardship letter
7. Approval
letter (if approved and not closed prior to servicing transfer)
| |
TTT.
|
Modification:
A report should be provided within 3 Business Days of the related
Servicing Transfer Date.
|
1. Recent
Property Valuation
3. Modification
Agreement or terms of Modification
4. Document/Title
co. contact information
6. Borrower
hardship letter
7. Identification
of any funds collected that remain unapplied or in suspense in conjunction
with
modification.
| |
UUU.
|
Deed-in-Lieu
of Foreclosure
|
1. Recent
Property Valuation
4. Document/Title
co. contact information
6. Borrower
hardship letter
2. Borrower
hardship letter
3. HUD
Insurance Certificate
4. Identify
prior partial claim filings if applicable
| |
WWW.
|
Provide
all loan history for Mortgage Loans to the related Servicing Transfer
Date
available on MSP. Said loan histories are to be accompanied by
an
explanation of transaction codes. History should be provided in
an
electronic file or hard copy. A report should be forwarded within
3
Business Days of the related Servicing Transfer
Date.
|
| |
XXX.
|
Provide
MSP service release workstation reports for the latest escrow analysis.
An
explanation of your analysis method (cushion, etc.) should also
be
provided. Copies of earlier escrow analysis will be provided by
the Prior
Servicer on an as needed case-by-case
basis.
|
| |
YYY.
|
Provide
the MSP service release workstation reports that reflects collection
activity and pertinent electronically available information on
delinquent
loans along such as FICO scores, BPO values, extension data and
payment
plan data. A report should be forwarded within 3 Business Days
of the
related Servicing Transfer Date. This information should be provided
in an
electronic file or hard copy.
|
| |
ZZZ.
|
Your
check for the escrow balances matching the cut-off trial
balance.
|
| |
AAAA.
|
Your
check for any unapplied funds and an indication as to how each
unapplied
payment should be applied.
|
| |
BBBB.
|
For
the first 60 days following the related Servicing Transfer Date,
. loan
payments and/or payoff funds received after the cut-off should
be endorsed
to [SPECIAL SERVICER] and forwarded by overnight service to the
following
address within twenty-four hours, properly identified with your
loan
number.
|
[SPECIAL
SERVICER]
[ADDRESS]
Thereafter,
the Prior Servicer is to return all such received payments to the
remitter(s)/borrower(s).
| |
CCCC.
|
Please
ship the entire loan file (hard, microfiche or imaged) and all
documents
to LLS to be received by the fifth Business Day after the related
Servicing Transfer Date. Provide electronic inventory ledger with
servicing files to identify loans within each box. Any information
required to be provided prior to the related Servicing Transfer
Date, such
as preliminary trial balances and master file data records, should
be
furnished by the 12th
Business Day of the month of the related Servicing Transfer Date.
Any file
sent to LLS that we will not be servicing will be returned via
insured two
day overnight express delivery to Aurora Loan Services, Attn: Records
Management Department at the Scottsbluff, Nebraska address unless
LLS is
supplied with shipping instructions and method of
payment.
|
All
servicing files should be sent to:
[SPECIAL
SERVICER]
[ADDRESS]
| |
DDDD.
|
All
reports such as trial balances, master file data records, default
information, histories, etc. should be sent to
:
|
[SPECIAL
SERVICER]
[ADDRESS]
| |
EEEE.
|
To
the extent possible, all information required by these Transfer
Instructions will be provided by or from the Fidelity MSP (f/k/a
Alltel or
CPI) servicing release workstation.
|
Remember
it is your responsibility to furnish all required IRS reporting statements
on
these loans for the current year up to the related Servicing Transfer Date
both
to the mortgagors and to the appropriate government agencies.
Your
cooperation in expediting this transfer is appreciated. Should you or any
member
of your staff have any questions concerning this transfer, please feel free
to
call me or the appropriate individual listed below at [TOLL FREE
NUMBER].
|
Contact
|
Department
|
Extension
|
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EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Special Servicer shall address, at a minimum, the criteria identified as
below
as “Applicable Servicing Criteria”, as identified by a mark 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
|
|
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
|
|
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.
|
|
|
|
|
|
EXHIBIT
K
TRANSACTION
PARTIES
Depositor: Structured
Asset Securities Corporation
Trustee:
Wells
Fargo Bank, N.A.
Securities
Administrator: N/A
Master
Servicer: Aurora
Loan Services LLC
Credit
Risk Manager: N/A
PMI
Insurer(s): N/A
Interest
Rate Swap Counterparty: N/A
Interest
Rate Cap Counterparty: Lehman
Brothers Special Financing, Inc.
Servicer(s):
Aurora Loan Services LLC, IndyMac Federal Bank, FSB and Countrywide Home
Loans
Servicing, LP.
Primary
Originator(s): Lehman Brothers Bank, FSB.
Custodian(s):
LaSalle Bank National Association and U.S. Bank National Association.
Sponsor
and Seller: Lehman Brothers Holdings, Inc.
EXHIBIT
L
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
10350
Park Meadows Drive
Attention:
Michele Olds
(LMT
2008-6)
Structured
Asset Securities Corporation
745
Seventh Avenue, 8th Floor
Lehman
Brothers Holdings Inc.
745
Seventh Avenue, 8th Floor
Wells
Fargo Bank, N.A.
9062
Old Annapolis Road
Attention:
Client Services Manager, LMT 2008-6
|
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.05 of that certain
special servicing agreement dated as of [DATE] (the “Agreement”), by and
among Lehman Brothers Holdings Inc., [SPECIAL SERVICER], as special
servicer, Aurora Loan Services LLC, as master servicer and acknowledged
by
[TRUSTEE], as Trustee, relating to the issuance of the Lehman Mortgage
Trust Mortgage Pass-Through Certificates, Series [SERIES
NO.]
|
[_______],
the undersigned, a duly authorized [_______] of [the Special Servicer][Name
of
Subservicer], does hereby certify the following for the [calendar year][identify
other period] ending on December 31, 20[__]:
|
1.
|
A
review of the activities of the Special Servicer during the preceding
calendar year (or portion thereof) and of its performance under
the
Agreement for such period has been made under my
supervision.
|
|
2.
|
To
the best of my knowledge, based on such review, the Special Servicer
has
fulfilled all of its obligations under the Agreement in all material
respects throughout such year (or applicable portion thereof),
or, if
there has been a failure to fulfill any such obligation in any
material
respect, I have specifically identified to the Master Servicer,
the
Depositor and the Trustee each such failure known to me and the
nature and
status thereof, including the steps being taken by the Special
Servicer to
remedy such default.
|
Certified
By:
______________________________
Name:
Title:
