Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 10 35K
2: EX-4.1 Pooling and Servicing Agreement 416 1.51M
3: EX-99.1 Mortgage Loan Purchase Agreement 44 149K
12: EX-99.10 Assignment, Assumption and Recognition Agreement 34 134K
13: EX-99.11 Seller's Warranties and Servicing Agreement 127 454K
14: EX-99.12 Assignment, Assumption and Recognition Agreement 23 79K
15: EX-99.13 Mortgage Servicing Purchase and Sale Agreement 118 332K
16: EX-99.14 Assignment, Assumption and Recognition Agreement 46 166K
17: EX-99.15 Assignment, Assumption and Recognition Agreement 3 16K
18: EX-99.16 Master Mortgage Loan Purchase and Servicing 91 301K
Agreement
19: EX-99.17 Assignment, Assumption and Recognition Agreement 45 155K
20: EX-99.18 Assignment, Assumption and Recognition Agreement 3 14K
21: EX-99.19 Mortgage Loan Flow Purchase, Sale & Servicing 48 230K
Agreement
4: EX-99.2 Assignment, Assumption and Recognition Agreement 27 91K
5: EX-99.3 Master Seller's Warranties and Servicing Agreement 125 492K
6: EX-99.4 Assignment, Assumption and Recognition Agreement 20 68K
7: EX-99.5 Mortgage Loan Purchase Agreement 44 144K
8: EX-99.6 Regulation Ab Amendment 13 44K
9: EX-99.7 Mortgage Loan Purchase Agreement 50 163K
10: EX-99.8 Servicing Agreement 60 223K
11: EX-99.9 Regulation Ab Amendment to Servicing Agreement 37 121K
EX-99.10 — Assignment, Assumption and Recognition Agreement
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EXHIBIT 99.10
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") made as of September 1, 2006, among Merrill Lynch Mortgage Lending,
Inc., having an address at World Financial Center, North Tower, New York, New
York 10281 ("Assignor"), Merrill Lynch Mortgage Investors, Inc., having an
address at 4 World Financial Center, 10th Floor, New York, New York 10281
("Assignee") and Wells Fargo Bank, N.A., having an address at 1 Home Campus, Des
Moines, Iowa 50328-0001 (the "Company").
WHEREAS, Assignor acquired the mortgage loans set forth on Attachment
1 annexed hereto (the "Assigned Loans") from the Company pursuant to that
certain Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series
2006-W60) (the "Agreement"), dated as of July 1, 2006, by and between Assignor,
as Purchaser, and the Company; and
WHEREAS, the Company agreed to service the Assigned Loans pursuant to
the Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties hereto agree that the Assigned Loans shall be subject to the
terms of this AAR Agreement. Capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Pooling and Servicing Agreement (as
defined below).
Assignment and Assumption
1. Assignor hereby grants, sells, transfers and assigns to Assignee all of
the right, title and interest of Assignor in the Assigned Loans and, as they
relate to the Assigned Loans, all of its right, title and interest in, to and
under the Agreement. Assignor specifically reserves and does not assign to
Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Agreement other than those set forth on Attachment l.
Notwithstanding anything to the contrary contained herein, Assignor is retaining
the right to enforce the representations and warranties made by the Company
prior to the date hereof with respect to the Assigned Loans and the Company.
Representations, Warranties and Covenants
2. Assignor warrants and represents to, and covenants with, Assignee and
the Company that, as of the date hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy of
the Agreement, which agreement is in full force and effect as of
the date hereof and the provisions of which have not been waived,
amended or modified in any respect, nor has any notice of
termination been given thereunder;
b. Assignor was the lawful owner of the Assigned Loans with full
right to transfer the Assigned Loans and any and all of its
interests, rights and obligations under the Agreement as it
relates to the Assigned Loans, free
and clear of any and all liens, claims and encumbrances; and upon
the transfer of the Assigned Loans to Assignee as contemplated
herein, Assignee shall have good title to each and every Assigned
Loan, as well as any and all of Assignor's interests, rights and
obligations under the Agreement as it relates to the Assigned
Loans, free and clear of any and all liens, claims and
encumbrances;
c. Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to the Company
with respect to the Assigned Loans or the Agreements;
d. Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modifications of, the Agreement.
Assignor has no knowledge of, and has not received notice of, any
waivers under or any amendments or other modifications of, or
assignment of rights or obligations under the Agreement;
e. Assignor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
formation, and has all requisite power and authority to acquire,
own and sell the Assigned Loans;
f. Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement and to
consummate the transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement is in the
ordinary course of Assignor's business and will not conflict
with, or result in a breach of, any of the terms, conditions or
provisions of Assignor's charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Assignor is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which Assignor or its property is subject. The execution,
delivery and performance by Assignor of this AAR Agreement and
the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of
Assignor. This AAR Agreement has been duly executed and delivered
by Assignor and, upon the due authorization, execution and
delivery by Assignee and the Company, will constitute the valid
and legally binding obligation of Assignor enforceable against
Assignor in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
g. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to be obtained or made by Assignor in connection with
the execution, delivery or performance by Assignor of this AAR
Agreement, or the
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consummation by it of the transactions contemplated hereby.
Neither Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned
Loans or any interest in the Assigned Loans, or solicited any
offer to buy or accept transfer, pledge or other disposition of
the Assigned Loans, or any interest in the Assigned Loans, or
otherwise approached or negotiated with respect to the Assigned
Loans, or any interest in the Assigned Loans, with any Person in
any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action
that would constitute a distribution of the Assigned Loans under
the Securities Act of 1933, as amended (the "1933 Act") or that
would render the disposition of the Assigned Loans a violation of
Section 5 of the 1933 Act or require registration pursuant
thereto; and
h. Assignor has received from the Company, and has delivered to
Assignee, all documents required to be delivered to Assignor by
the Company prior to the date hereof pursuant to Section 7.01 of
the Agreement with respect to the Assigned Loans.
3. Assignee warrants and represents to, and covenants with, Assignor and
Company that as of the date hereof:
a. Assignee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation
and has all requisite power and authority to acquire, own and
purchase the Assigned Loans;
b. Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement and to
consummate the transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement is in the
ordinary course of Assignee's business and will not conflict
with, or result in a breach of, any of the terms, conditions or
provisions of Assignee's charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Assignee is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which Assignee or its property is subject. The execution,
delivery and performance by Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of
Assignee. This AAR Agreement has been duly executed and delivered
by Assignee and, upon the due authorization, execution and
delivery by Assignor and the Company, will constitute the valid
and legally binding obligation of Assignee enforceable against
Assignee in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights
3
generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or
at law;
c. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to be obtained or made by Assignee in connection with
the execution, delivery or performance by Assignee of this AAR
Agreement, or the consummation by it of the transactions
contemplated hereby;
d. There is no action, suit, proceeding, investigation or litigation
pending or, to Assignee's knowledge, threatened, which either in
any instance or in the aggregate, if determined adversely to
Assignee, would adversely affect Assignee's execution or delivery
of, or the enforceability of, this AAR Agreement, or Assignee's
ability to perform its obligations under this AAR Agreement;
e. Assignee understands that the Assigned Loans have not been
registered under the Securities Act of 1934 (the "Securities
Act") or the securities laws of any state;
f. Assignee is either (i) not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986 (the "Code")(a "Plan") and not a Person acting,
directly or indirectly, on behalf of or investing with "plan
assets" of any such Plan or (ii) an employee benefit plan that is
subject to ERISA and the assignment contemplated herein does not
constitute and will not result in non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the
Code;
g. Assignee assumes all of the rights of the Assignor under the
Agreements with respect to the Assigned Loans including the right
to enforce the representations and warranties of the Company
contained in the Agreements; and
h. A registration statement on Form S-3 (File No. 333-130545),
including the Base Prospectus (the "Registration Statement") has
been filed with the Securities and Exchange Commission (the
"Commission") and has become effective under the Securities Act
and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been initiated, or to the Assignee's knowledge,
threatened, by the Commission.
4. The Company warrants and represents to, and covenants with, Assignor and
Assignee that as of the date hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy of
the Agreement, which agreement is in full force and effect as of
the date hereof and the respective provisions of which have not
been waived,
4
amended or modified in any respect, nor has any notice of
termination been given thereunder;
b. The Company is duly organized, validly existing and in good
standing as a national banking association under the laws of the
United States of America and has all requisite power and
authority to service the Assigned Loans;
c. The Company has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement and
to consummate the transactions set forth herein. The consummation
of the transactions contemplated by this AAR Agreement is in the
ordinary course of the Company's business and will not conflict
with, or result in a breach of, any of the terms, conditions or
provisions of the Company's charter or by-laws or any legal
restriction, or any material agreement or instrument to which the
Company is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which the Company or its property is subject. The execution,
delivery and performance by the Company of this AAR Agreement and
the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of the Company. This AAR Agreement has been duly
executed and delivered by the Company, and, upon the due
authorization, execution and delivery by Assignor and Assignee,
will constitute the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its
terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
d. No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be obtained or made by the Company in connection with the
execution, delivery or performance by the Company of this AAR
Agreement or the consummation by it of the transactions
contemplated hereby;
e. The Company shall establish a Custodial Account (entitled "Wells
Fargo Bank, N.A., as Servicer, in trust for Wells Fargo Bank,
N.A. as Securities Administrator for Merrill Lynch Mortgage
Investors Trust MLMI Series 2006-AF1 Mortgage Pass-Through
Certificates") and an Escrow Account (entitled "Wells Fargo Bank,
N.A., as Servicer, in trust for Wells Fargo Bank, N.A., as
Securities Administrator for Merrill Lynch Mortgage Investors
Trust MLMI Series 2006-AF1 Mortgage Pass-Through Certificates")
with respect to the Assigned Loans, which accounts shall be
separate from the Custodial Account and Escrow Account previously
established under the Agreement in favor of the Assignor; and
5
f. Each of the representations and warranties made by Company in
Section 3.01 of the Agreement (except Section 3.01(f)) are true
and correct in all material respects as of the date hereof.
Recognition of Assignee
5. From and after the date hereof, the Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee in
accordance with the Agreement (as modified herein), the terms of which are
incorporated herein by reference. The Company hereby acknowledges that the
Mortgage Loans will be part of a REMIC. In no event will the Company service the
Mortgage Loans in a manner that would (i) cause the REMIC to fail to qualify as
a REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code). In addition, Company hereby acknowledges that from
and after the date hereof, the Assigned Loans will be subject to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2006, by and among Merrill Lynch Mortgage Investors, Inc., Wells
Fargo Bank, N.A. (the "Master Servicer" and "Securities Administrator") and HSBC
Bank USA, National Association. Pursuant to the Pooling and Servicing Agreement,
the Master Servicer is required to monitor the Company's performance of its
servicing obligations under the Agreement. Such right will include, without
limitation, the right to terminate the Company under the Agreement upon the
occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Company under the Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company.
6. In connection therewith, the Company hereby agrees that all remittances
required to be made with respect to the Assigned Loans pursuant to the Agreement
will be made in accordance with the following wire transfer instructions:
Bank: Wells Fargo Bank, N.A.
ABA Routing Number: 121-000-248
Account Name: Corporate Trust Clearing
Account Number: 3970771416
For Credit to: MLMI Series 2006-AF1, Acct# 50948000
and the Company shall deliver all reports required to be delivered under the
Agreement to the Master Servicer at:
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Client Manager - MLMI 2006-AF1
It is the intention of Assignor, the Company and Assignee that this AAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto.
6
Neither the Company nor Assignor shall amend or agree to amend, modify, waive or
otherwise alter any of the terms or provisions of the Agreement which amendment,
modification, waiver or other alteration would in any way affect the Assigned
Loans without the prior written consent of Assignee.
Modification of the Agreement
7. Assignor, Assignee and the Company hereby amend the Agreement as
follows:
(a) The Assignor, Assignee and Company hereby amend the definition of
"Remittance Date" in Article I of the Agreement by deleting the words
"immediately following" and replacing them with ""immediately preceding".
(b) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Business Day" in its entirety and
replacing it with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking and savings and loan institutions in the State of Maryland,
State of Minnesota or State of California are authorized or obligated by
law or executive order to be closed."
(c) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Whole Loan Transfer" in its entirety
and replacing it with the following:
"Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction."
(d) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Commission" in its entirety and
replacing it with the following:
"Commission: The United States Securities and Exchange Commission."
(e) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Company Information" in its
entirety and replacing it with the following:
"Company Information: As defined in Section 6.07A(a)."
(f) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Master Servicer" in its entirety and
replacing it with the following:
"Master Servicer: Wells Fargo Bank, N.A."
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(g) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Reconstitution" in its entirety and
replacing it with the following:
"Reconstitution: Any Securitization Transaction or Whole Loan
Transfer."
(h) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by deleting the definition of "Servicer" in its entirety and replacing
it with the following:
"Servicer: As defined in Section 9.01(h)(iii)."
(i) The Assignor, Assignee and Company hereby amend Article I of the
Agreement by adding the following definitions in alphabetical order:
"Assignment and Assumption Agreement: The assignment and assumpyion
agreement, deated as of September 1, 2006, by and amont Merrill Lynch Mortgage
Lending, Inc., Merrill Lynch Mortgage Investors, Inc. and Wells Fargo Bank,
N.A., as the company."
"Pooling and Servicing Agreement: The pooling and servicing agreement
dated as of September 1, 2006, by and among Merrill Lynch Mortgage
Investors, Inc., the Master Servicer, the Securities Administrator and HSBC
Bank USA, National Association, as trustee."
"Securities Administrator: Wells Fargo Bank, N.A."
(j) Assignor, Assignee and the Company hereby amend Section 5.02 of
the Agreement by deleting the section in its entirety and replacing it with the
following:
"On or before the tenth calendar day of each month (or if such day is not a
Business Day, the immediately preceding Business Day), the Company shall
furnish to the Purchaser or its designee a delinquency report in the form
set forth in Exhibit J-1, a monthly remittance advice in the form set forth
in Exhibit J-2, and a realized loss report in the form set forth in Exhibit
J-3, each in a mutually agreeable electronic format, as to the latest Due
Period, together with such other information with respect to the Mortgage
Loans as the Purchaser may reasonably require to allocate distributions
made pursuant to this Agreement and to provide appropriate statements in
connection therewith."
(k) Assignor, Assignee and the Company hereby amend Section 6.04 of
the Agreement by deleting such section in its entirety and replacing it with the
following:
"On or before March 1st of each calendar year, commencing in 2007, the
Company shall deliver to the Master Servicer a statement of compliance
addressed to the Master Servicer and signed by an authorized officer of the
Company, to the effect that (i) a review of the Company's activities during
the immediately preceding calendar year (or applicable portion thereof) and
of its performance under this Agreement and any applicable Reconstitution
Agreement during such period has been made under such officer's
supervision, and (ii) to the best of such officers' knowledge, based on
such review, the
8
Company has fulfilled all of its obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the
nature and the status thereof."
(l) Assignor, Assignee and the Company hereby amend the Agreement by
deleting Section 6.05 in its entirety and replacing it with "[Reserved]."
(m) Assignor, Assignee and the Company hereby delete Section 6.06 of
the Agreement in its entirety and replace it with the following:
"Section 6.06 Report on Assessment of Compliance and Attestation.
With respect to any Mortgage Loans that are the subject of a
Securitization Transaction, on or before March 1st of each calendar year,
commencing in 2007, the Company shall:
(i) deliver to the Master Servicer a report (in form and substance
reasonably satisfactory to the Master Servicer) regarding the Company's
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to the Master Servicer and signed by an authorized officer of the Company,
and shall address each of the "Applicable Servicing Criteria" specified on
Exhibit I hereto (or those Servicing Criteria otherwise mutually agreed to
by the Purchaser, the Company and any Person that will be responsible for
signing any Sarbanes Certification with respect to a Securitization
Transaction in response to evolving interpretations of Regulation AB);
(ii) deliver to the Master Servicer a report of a registered public
accounting firm reasonably acceptable to the Master Servicer that attests
to, and reports on, the assessment of compliance made by the Company and
delivered pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by the
Company pursuant to Section 4.26(b) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, to deliver to
the Purchaser and any Depositor an assessment of compliance and
accountants' attestation as and when provided in this Section; and
(iv) deliver, and cause each Subservicer and each Subcontractor
described in clause (iii) to deliver, to the Master Servicer and any other
Person that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley Act of 2002) on
behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification, signed by the appropriate officer of the
Company, in the form attached hereto as Exhibit G.
9
The Company acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Company pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery
of a certification under clause (iv) above unless a Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect
to an issuing entity whose asset pool includes Mortgage Loans.
Each assessment of compliance provided by a Subservicer pursuant to
Section 6.06(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit I hereto delivered to
the Purchaser concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 6.06(iii) need not address any elements
of the Servicing Criteria other than those specified by the Company
pursuant to Section 4.26."
(n) Assignor, Assignee and the Company hereby delete Section 6.07 of
the Agreement in its entirety and replace it with the following:
"Section 6.07 Remedies.
(i) Any failure by the Company, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article IX, Section 4.26, Section 6.04 or Section 6.06, or any
breach by the Company of a representation or warranty set forth in Section
9.01(h)(vi)(A) or in a writing furnished pursuant to Section 9.01(h)(vi)(B)
and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a representation or
warranty in a writing furnished pursuant to Section 9.01(h)(vi)(B) to the
extent made as of a date subsequent to such closing date, shall, except as
provided in clause (ii) of this Section, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to the Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or any Depositor, as applicable,
in its sole discretion to terminate the rights and obligations of the
Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of
any compensation to the Company (and if the Company is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor
servicer reasonably acceptable to any Master Servicer for such
Securitization Transaction); provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Company as servicer, such provision shall be given
effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter
when and as required under Section 6.04 or Section 6.06, including (except
as provided below) any failure by
10
the Company to identify pursuant to Section 4.26(ii) any Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB, which continues unremedied for ten (10) calendar days
after the date on which such information, report, certification or
accountants' letter was required to be delivered shall constitute an Event
of Default with respect to the Company under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser, any
Master Servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Company; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Company as servicer, such provision shall be given
effect.
Neither the Purchaser nor any Depositor shall be entitled to terminate
the rights and obligations of the Company pursuant to this subparagraph
(ii) if a failure of the Company to identify a Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB
was attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser), any Master Servicer and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this paragraph
shall not limit whatever rights the Purchaser or any Depositor may have
under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive relief."
(o) Assignor, Assignee and the Company hereby amend Section 9.01(c) of
the Agreement by deleting such section in its entirety and replacing it with
"Reserved."
(p) Assignor, Assignee and the Company hereby amend Section 9.01(d) by
deleting such section in its entirety and replacing it with the following:
"provide any and all information and appropriate verification of
information which may be reasonably available to the Company,
including the Company's underwriting standards, whether through
letters of its auditors and counsel or otherwise, as the Purchaser
shall request; provided that the Purchaser executes an Indemnification
Agreement substantially in the form of Exhibit H attached hereto;
The Company shall provide such additional representations, warranties,
covenants, opinions of counsel or certificates of officers of the
Company as are reasonably believed necessary by the trustee, any
rating agency or the Purchaser, as the case may be, in connection with
such Agency Sales, Whole Loan Transfers or Securitization
Transactions. The Purchaser shall pay all third-party costs
11
associated with the preparation of such information. The Company shall
execute any seller/servicer agreements required within a reasonable
period of time after receipt of such seller/servicer agreements which
time shall be sufficient for the Company and Company's counsel to
review such seller/servicer agreements. Under this Agreement, the
Company shall retain a Servicing Fee for each Mortgage Loan at the
Servicing Fee Rate;"
(q) Assignor, Assignee and the Company hereby delete Section
9.01(e)(iv) of the Agreement in its entirety and replace it with the following:
"For the purpose of satisfying the reporting obligation under the Exchange
Act with respect to any class of asset-backed securities, the Company shall (or
shall cause each Subservicer and Third-Party Originator to) (1) promptly notify
the Purchaser, any Master Servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings involving the Company, any
Subservicer or any Third-Party Originator (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Company, any Subservicer or any Third-Party Originator and any of the
parties specified in Section 9.01(e)(i)(D) (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, (C) any Event of Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger, consolidation or sale of substantially
all of the assets of the Company, and (E) the Company's entry into an agreement
with a Subservicer to perform or assist in the performance of any of the
Company's obligations under this Agreement or any Reconstitution Agreement and
(2) provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships."
(r) Assignor, Assignee and the Company hereby delete Sections 9.01(f)
(i), (ii), (iii) and (iv) and replace them with the following:
"(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, data,
accountants' letter or other material provided in written or
electronic form under Sections 4.26, 6.04, 6.06, 9.01(e) and (f)
by or on behalf of the Company, or provided under Sections 4.26,
6.04, 6.06, 9.01(e) and (f) by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the
"Company Information"), or (B) the omission or alleged omission
to state in the Company Information a material fact required to
be stated in the Company Information or necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Company Information and not
to any other information communicated in connection with a sale
or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or
separately from such other information;
(ii) any breach by the Company of its obligations under this Section
9.01(e), including particularly any failure by the Company, any
Subservicer, any
12
Subcontractor or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other
material when and as required under Sections 4.26, 6.04, 6.06 and
9.01(e), including any failure by the Company to identify any
Subcontractor "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Company of a representation or warranty set
forth in Section 9.01(e)(vi)(A) or in a writing furnished
pursuant to Section 9.01(e)(vi)(B) and made as of a date prior to
the closing date of the related Securitization Transaction, to
the extent that such breach is not cured by such closing date, or
any breach by the Company of a representation or warranty in a
writing furnished pursuant to Section 9.01(e)(vi)(B) to the
extent made as of a date subsequent to such closing date; or
(iv) the negligence, bad faith or willful misconduct of the Company in
connection with is performance under SectionS 4.26, 6.04, 6.06
and 9.01(e)."
(s) Assignor, Assignee and the Company hereby delete Section 9.01(g),
third paragraph, in its entirety and replace it with the following:
"Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser,
any Master Servicer or any Depositor in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Company shall
cooperate fully with the Purchaser and any Master Servicer to deliver to the
Purchaser (including any of its assignees or designees), any Master Servicer and
any Depositor, any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Purchaser,
the Master Servicer or any Depositor to permit the Purchaser, such Master
Servicer or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary in
order to effect such compliance."
(t) Assignor, Assignee and the Company hereby amend Section 10.01(ii)
of the Agreement by adding the following language to the beginning of such
section: "except with respect to clause (x) below,"
(u) Assignor, Assignee and the Company hereby amend Article XII of the
Agreement by adding the following new Section 12.15:
13
"Section 12.15. Third Party Beneficiary.
For purposes of this Article XII and any related provisions thereto, any
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement."
(v) Assignor, Assignee and the Company hereby amend Exhibit G of the
Agreement by deleting such exhibit in its entirety and replacing it with the
following:
"EXHIBIT G
FORM OF ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [__________ l, 200[__] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ____________________________, the _______________________ of [NAME OF
COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], 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 Company 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 Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[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] [Master Servicer] [Securities Administrator] [Trustee];
4. I am responsible for reviewing the activities performed by the Company 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
14
Statement, the Servicing Assessment or the Attestation Report, the Company
has fulfilled its obligations under the Agreement in all material respects;
and
5. The Compliance Statement required to be delivered by the Company pursuant
to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
(w) Assignor, Assignee and the Company hereby amend the Agreement by
adding the following Exhibit I to the Agreement:
"EXHIBIT I
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
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SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
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 X
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.
CASH COLLECTION AND ADMINISTRATION
15
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SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
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.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or X
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.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
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.
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 X
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.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
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.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X
Servicer's investor records, or such other number of days specified in the
transaction agreements.
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SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed X
and approved in accordance with any conditions or requirements in the
transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with X
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.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(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.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications X
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.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
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).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): X
(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.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) X
17
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SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
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.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
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.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business X
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
(x) Assignor, Assignee and the Company hereby amend the Agreement to
add the following Exhibit J-1, Exhibit J-2 and Exhibit J-3 to the Agreement:
"EXHIBIT J-1
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
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COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------ ----------- ------- --------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the
originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans in
their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due MM/DD/YYYY
to the servicer at the end of processing cycle, as
reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
18
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POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure
proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or
sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or
appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why the
loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
19
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POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The MM/DD/YYYY
Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Wells Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Wells
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
20
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
21
STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
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DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
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STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
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STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
EXHIBIT J-2
STANDARD FILE LAYOUT - MASTER SERVICING
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MAX
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT SIZE
----------------- ------------------------------------- ------- -------------------- ----
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by Text up to 10 digits 10
the Servicer. This may be different
than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the Maximum length of 30 30
file. It is not separated by first (Last, First)
and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or 11
scheduled interest payment that a dollar signs ($)
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported by 4 Max length of 6 6
the Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
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SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan 2 No commas(,) or dollar signs ($) 11
as reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the beginning of the
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the end of the processing
cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_1 The curtailment date associated with MM/DD/YYYY 10
the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with MM/DD/YYYY 10
the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
second curtailment amount, if
applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported by MM/DD/YYYY 10
the Servicer.
ACTION_CODE The standard FNMA numeric code used Action Code Key: 15=Bankruptcy, 2
to indicate the default/delinquent 30=Foreclosure, 60=PIF,
status of a particular loan. 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment 2 No commas(,) or dollar signs ($) 11
as reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as 2 No commas(,) or dollar signs ($) 11
a loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar signs ($) 11
amount due at the beginning of the
cycle date to be passed through to
investors.
SCHED_END_PRIN_BAL The scheduled principal balance due 2 No commas(,) or dollar signs ($) 11
to investors at the end of a
processing cycle.
24
[Enlarge/Download Table]
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the
current cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the
current cycle as reported by the
Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected 2 No commas(,) or dollar signs ($) 11
by the Servicer for the current
reporting cycle -- only applicable
for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the
current reporting cycle as reported
by the Servicer -- only applicable
for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the 2 No commas(,) or dollar signs ($) 11
loan waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
EXHIBIT J-3
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE
REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL
THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING
LOSS APPROVAL AND /OR RESOLUTION OF ANY DISPUTED ITEMS.
The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
25
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax,
interest, penalty. Advances prior to default require evidence of
servicer efforts to recover advances.
* For escrow advances - complete payment history (to calculate
advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Servicing Officer certification
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent/Attorney Letter of Proceeds
Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
26
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ________________________ Date: _________________________________
Phone: ______________________________ Email Address:__________________________
[Download Table]
Servicer Loan No. Servicer Name Servicer Address
----------------- ------------- ----------------
WELLS FARGO BANK, N.A. LOAN NO._____________________________
Borrower's Name: __________________________________________________________
Property Address: _________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount _______________________________
[Download Table]
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________(1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance _______________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys________________________ ________________(12)
HOA/Condo Fees_______________________ ________________(12)
_____________________________________ ________________(12)
TOTAL EXPENSES $_______________(13)
CREDITS:
(14) Escrow Balance $_______________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________(18a)
HUD Part A
________________(18b)
HUD Part B
27
[Download Table]
(19) Pool Insurance Proceeds ________________(19)
(20) Proceeds from Sale of Acquired Property ________________(20)
(21) Other (itemize) ________________(21)
_________________________________________ ________________(21)
TOTAL CREDITS $_______________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $_______________(23)
28
ESCROW DISBURSEMENT DETAIL
[Download Table]
TYPE PERIOD OF
(TAX /INS.) DATE PAID COVERAGE TOTAL PAID BASE AMOUNT PENALTIES INTEREST
----------- --------- --------- ---------- ----------- --------- --------
Miscellaneous
8. All demands, notices and communications related to the Assigned Loans,
the Agreement and this AAR Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a. In the case of the Company,
Wells Fargo Bank, N.A.
1 Home Campus
Des Moines, IA 50328-0001
Attention: John B. Brown, MAC X2302-033
Fax: 515/324-3118
29
with a copy to:
Wells Fargo Bank, N.A.
1 Home Campus
Des Moines, Iowa 50328-0001
Attention: General Counsel MAC X2401-06T
b. In the case of Assignor,
Merrill Lynch Mortgage Lending, Inc.
World Financial Center
North Tower
New York, New York 10281
Attention: MLMI 2006-AF1
c. In the case of Assignee,
Merrill Lynch Mortgage Investors, Inc.
4 World Financial Center, 10th Floor
New York, New York 10281
Attention: MLMI 2006-AF1
d. In the case of Master Servicer,
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Client Manager - MLMI 2006-AF1
9. This AAR Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this AAR Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
11. This AAR Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which Assignor, Assignee or the
Company may be merged or consolidated shall without the requirement for any
further writing, be deemed Assignor, Assignee or the Company, respectively
hereunder.
30
12. This AAR Agreement shall survive the conveyance of the Assigned Loans
as contemplated in this AAR Agreement.
13. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
14. In the event that any provision of this AAR Agreement conflicts with
any provision of the Agreement with respect to the Assigned Loans, the terms of
this AAR Agreement shall control.
15. Each party will pay any commissions it has incurred and the Assignor
shall pay the fees of its attorneys and reimburse the Company for all
out-of-pocket expenses, including attorney's fees, incurred by the Company in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
16. For purposes of this AAR Agreement only, the Master Servicer shall be
considered a third party beneficiary, entitled to all the rights and benefits
accruing to any Master Servicer as set forth herein as if it were a direct party
to this AAR Agreement.
31
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as
of the day and year first above written.
MERRILL LYNCH MORTGAGE LENDING, INC.
Assignor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
MERRILL LYNCH MORTGAGE INVESTORS,
INC.
Assignee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WELLS FARGO BANK, N.A.
Company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ACKNOWLEDGED AND AGREED:
WELLS FARGO BANK, N.A.
Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ATTACHMENT l
ASSIGNED LOAN SCHEDULE
(Provided Upon Request)
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT,
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
(Provided Upon Request)
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 10/16/06 | | | | | | | None on these Dates |
| For Period End: | | 9/1/06 | | 1 | | 8 |
| | 7/1/06 | | 1 |
| List all Filings |
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