RESIDENTIAL FUNDING CORPORATION, the Company and GOLDMAN SACHS MORTGAGE COMPANY, the Initial Owner STANDARD TERMS AND PROVISIONS OF SALE AND SERVICING AGREEMENT Dated as of September 29, 2005 Residential Mortgage Loans
EXECUTION
VERSION
RESIDENTIAL
FUNDING CORPORATION,
the
Company
and
XXXXXXX
XXXXX MORTGAGE COMPANY,
the
Initial Owner
STANDARD
TERMS AND PROVISIONS OF
Dated
as of September 29, 2005
Residential
Mortgage Loans
TABLE
OF CONTENTS
Page
|
Definitions
|
1
|
|
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Calculations
Respecting Accrued Interest
|
11
|
|
ARTICLE
II
|
Conveyance
of Mortgage Loans
|
13
|
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files
|
13
|
|
Section
2.02
|
Acceptance
by the Initial Owner
|
17
|
|
Section
2.03
|
Assignment
of Mortgage Loans
|
18
|
|
Section
2.04
|
Representations
and Warranties of the Company.
|
20
|
|
Section
2.05
|
Representations,
Warranties and Covenants of the Initial Owner
|
30
|
|
Section
2.06
|
Protection
of Confidential Information and Consumer Information.
|
31
|
|
ARTICLE
III
|
Administration
and Servicing of Mortgage Loans
|
32
|
|
Section
3.01
|
Company
to Act as Servicer
|
32
|
|
Section
3.02
|
Agreements
Between Company and Subservicer
|
32
|
|
Section
3.03
|
Collection
of Certain Mortgage Loan Payments and Liquidation of Mortgage
Loans
|
34
|
|
Section
3.04
|
Principal
and Interest Accounts
|
34
|
|
Section
3.05
|
Escrow
Accounts
|
34
|
|
Section
3.06
|
Custodial
Account
|
34
|
|
Section
3.07
|
Permitted
Withdrawals From the Custodial Account
|
35
|
|
Section
3.08
|
Permitted
Instruments
|
35
|
|
Section
3.09
|
Primary
Insurance Policies
|
37
|
|
Section
3.10
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage
|
37
|
|
Section
3.11
|
Enforcement
of Due-On-Sale Clauses
|
38
|
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans
|
39
|
|
Section
3.13
|
Owner
to Cooperate; Release of Mortgage Files
|
41
|
|
Section
3.14
|
Reports
to the Owner
|
41
|
-i-
|
Section
3.15
|
REO
Property
|
42
|
|
Section
3.16
|
Compensating
Interest
|
43
|
|
Section
3.17
|
Filing
Requirements
|
44
|
|
Section
3.18
|
Reconstitution
|
44
|
|
Section
3.19
|
Credit
Risk Advisor
|
46
|
|
Section
3.20
|
Assessment
of Servicing Compliance
|
46
|
|
ARTICLE
IV
|
Payments
to the Owner
|
47
|
|
Section
4.01
|
Distributions
|
47
|
|
Section
4.02
|
Statements
to the Owner
|
47
|
|
Section
4.03
|
Distribution
Reports; Monthly Advances by the Company
|
48
|
|
Section
4.04
|
Reports
and Returns to Be Filed by the Company
|
48
|
|
ARTICLE
V
|
The
Company
|
49
|
|
Section
5.01
|
Liability
of the Company and Others
|
49
|
|
Section
5.02
|
Merger
or Consolidation of the Company
|
50
|
|
Section
5.03
|
Company
Resignation; Assignment of Agreement
|
50
|
|
Section
5.04
|
Compliance
With REMIC Provisions
|
50
|
|
Section
5.05
|
Right
to Examine Company Records
|
51
|
|
ARTICLE
VI
|
Default
|
52
|
|
Section
6.01
|
Events
of Default of the Company
|
52
|
|
Section
6.02
|
Waiver
of Defaults
|
53
|
|
ARTICLE
VII
|
Termination
|
54
|
|
Section
7.01
|
Termination
|
54
|
|
ARTICLE
VIII
|
Miscellaneous
Provisions
|
55
|
|
Section
8.01
|
Successor
to the Company
|
55
|
|
Section
8.02
|
Entire
Agreement; Amendment
|
55
|
|
Section
8.03
|
Governing
Law
|
55
|
|
Section
8.04
|
Notices
|
55
|
|
Section
8.05
|
Severability
of Provisions
|
56
|
|
Section
8.06
|
No
Partnership
|
56
|
|
Section
8.07
|
Exhibits
|
56
|
|
Section
8.08
|
Counterparts;
Successors and Assigns
|
56
|
-ii-
|
Exhibits
|
|
|
Exhibit
A
|
Form
of Reference Agreement
|
|
Exhibit
B
|
Custodial
Agreement dated August 1, 2003, between the Initial Owner and Xxxxx
Fargo
Bank, N.A.
|
|
Exhibit
C
|
Form
of Subservicing Agreement
|
|
Exhibit
D
|
Delinquency
Collection Policies and Procedures
|
|
Exhibit
E
|
Form
of Assignment and Assumption Agreement
|
|
Exhibit
F
|
Form
of Certification
|
|
Exhibit
G
|
Form
of Request for Release
|
|
Exhibit
H
|
Form
of Back-Up Certification
|
|
Exhibit
I
|
Form
of Indemnification Agreement
|
-iii-
This
is a
STANDARD TERMS AND PROVISIONS OF SALE AND SERVICING AGREEMENT, dated and
effective as of September 29, 2005, by and between RESIDENTIAL FUNDING
CORPORATION, as seller and master servicer (the “Company”) and XXXXXXX XXXXX
MORTGAGE COMPANY, as the initial owner (the “Initial Owner”), together with all
amendments hereof and supplements hereto (as it pertains to the Mortgage
Pool
and as incorporated by reference in and made a part of the Reference Agreement
(as defined below), the “Agreement”.
PRELIMINARY
STATEMENT
The
Initial Owner has agreed to purchase from time to time from the Company and
the
Company has agreed to sell to the Initial Owner, on a servicing retained
basis
and without recourse, a 100% undivided Ownership Interest in pools of
residential Mortgage Loans. Each pool of Mortgage Loans will have the
characteristics set forth herein and in the Reference Agreement, a form of
which
is attached as Exhibit A hereto (each, a “Reference Agreement”). The sale of the
Mortgage Loans in each Mortgage Pool will be governed by the Reference Agreement
together with this Agreement, which will be incorporated by reference into
and
made a part of the Reference Agreement.
In
consideration of the premises and the mutual agreements hereinafter set forth,
and intending to be legally bound, the Initial Owner and the Company agree
hereby as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the
context otherwise requires, shall have the meanings specified in this
Article.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan those mortgage servicing practices specified
in the
Program Guide and those mortgage servicing practices of prudent mortgage
lending
institutions that service mortgage loans of the same type as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located and
incorporating the Delinquency Collection Policies and Procedures.
Accrued
Interest:
With
respect to each Remittance Date, one month’s interest accrued at the then
applicable Pass-Through Rate on the aggregate Principal Balance of the Mortgage
Loans in the Mortgage Pool as of the close of business on the immediately
preceding Remittance Date (or in the case of the first Remittance Date, the
Cut-off Date). Accrued Interest will be calculated on the basis of a 360-day
year consisting of twelve 30-day months. In each case Accrued Interest will
be
adjusted in accordance with Section 1.02.
Acquisition
Date:
As
defined in Section 3.15.
Affiliate:
With
reference to the Company, any other entity controlling, controlled by, or
under
direct or indirect common control with the Company; as used in this definition,
the term “control,” including the correlative terms “controlling,” “controlled
by” and “under common control with,” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or
policies of an entity, whether through ownership of voting securities, by
contract or otherwise.
Appraised
Value:
With
respect to any Mortgaged Property, generally, the lesser of (a) the appraised
value of such Mortgaged Property based on an appraisal made at the time of
the
origination or modification of the related Mortgage Loan and (b) the sales
price
of the Mortgaged Property at such time of origination; except in the case
of a
Mortgaged Property securing a refinanced or modified Mortgage Loan as to
which
it is either the appraised value determined above or the appraised value
determined in an appraisal at the time of refinancing or modification, as
the
case may be.
Assigned
Contracts:
With
respect to any Pledged Asset Loan: the Credit Support Pledge Agreement; the
Funding and Pledge Agreement, among GMAC Mortgage Corporation, National
Financial Services Corporation and the Mortgagor or other person pledging
the
related Pledged Assets; or the Additional Collateral Agreement, between GMAC
Mortgage Corporation and the Mortgagor or other person pledging the related
Pledged Assets.
Assignment:
An
assignment of the Mortgage, notice of transfer or equivalent instrument
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, the assignment of the related Cooperative
Lease
from the Mortgagor to the originator of the Cooperative Loan.
Bankruptcy
Code:
The
United States Bankruptcy Code, Title 11 of the United States Code, as
amended.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the State of Minnesota, the State of California or the State
of
Illinois (or such other state or states in which the Custodial Account is
at the
time located) are required or authorized by law or executive order to be
closed.
Buydown
Funds:
Any
amount contributed by the seller of a Mortgaged Property, the Company or
other
source in order to enable the Mortgagor to reduce the payments required to
be
made from the Mortgagor’s funds in the early years of a Mortgage
Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan as to which a specified amount of interest is paid out of related
Buydown Funds in accordance with a related buydown agreement.
Cash
Receipts:
As
defined in Section 3.15.
Closing
Date:
As
defined in the Reference Agreement.
Code:
The
Internal Revenue Code of 1986.
-2-
Combined
Collateral LLC:
Combined Collateral LLC, a Delaware limited liability company.
Commission:
The
United States Securities and Exchange Commission.
Company:
Residential Funding Corporation, a Delaware corporation, or its successor
in
interest, or any successor as herein provided.
Compensating
Interest:
With
respect to any Remittance Date, an amount equal to Prepayment Interest
Shortfalls resulting from Full Prepayments during the related Prepayment
Period
and Partial Prepayments during the prior calendar month, but not more than
the
Servicing Fee received by the Company with respect to the Mortgage Loans
and
such Remittance Date and any income or gain realized from the investment
of
funds held in the Custodial Account to which the Company is entitled pursuant
to
Section 3.08 for such Remittance Date.
Confidential
Information:
As
defined in Section 2.06.
Consumer
Information:
Information including but not limited to all personal information about the
Mortgagors that is supplied to any party to this Agreement on behalf of the
Mortgagors.
Cooperative:
A
private, cooperative housing corporation which owns or leases land and all
or
part of a building or buildings, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes, among other things, the sale of Cooperative Stock.
Cooperative
Apartment:
A
dwelling unit in a multi-dwelling building owned or leased by a Cooperative,
which unit the Mortgagor has an exclusive right to occupy pursuant to the
terms
of a proprietary lease or occupancy agreement.
Cooperative
Lease:
With
respect to a Cooperative Loan, the proprietary lease or occupancy agreement
with
respect to the Cooperative Apartment occupied by the Mortgagor and relating
to
the related Cooperative Stock, which lease or agreement confers an exclusive
right to the holder of such Cooperative Stock to occupy such
apartment.
Cooperative
Loans:
Any of
the Mortgage Loans made in respect of a Cooperative Apartment, evidenced
by a
Mortgage Note and secured by (i) a Security Agreement, (ii) the related
Cooperative Stock Certificate, (iii) an assignment of the Cooperative Lease,
(iv) financing statements and (v) a stock power (or other similar instrument),
and ancillary thereto, a recognition agreement between the Cooperative and
the
originator of the Cooperative Loan, each of which was transferred and assigned
to the Initial Owner pursuant to Section 2.01.
Cooperative
Stock:
With
respect to a Cooperative Loan, the single outstanding class of stock,
partnership interest or other ownership instrument in the related
Cooperative.
Cooperative
Stock Certificate:
With
respect to a Cooperative Loan, the stock certificate or other instrument
evidencing the related Cooperative Stock.
-3-
Credit
Support Pledge Agreement:
The
Credit Support Pledge Agreement, dated as of November 24, 1998, among the
Company, as master servicer, GMAC Mortgage Corporation, Combined Collateral
LLC
and The First National Bank of Chicago (now known as JPMorgan Chase Bank),
as
custodian.
Custodial
Account:
The
custodial account created and maintained pursuant to Section 3.06.
Custodial
Agreement:
The
Custodial Agreement dated August 1, 2003, between the Initial Owner and Xxxxx
Fargo Bank, N.A. attached hereto as Exhibit B.
Custodian:
A
custodian, which shall not be the Owner, appointed by the Company pursuant
to a
Custodial Agreement.
Cut-off
Date:
As
defined in the Reference Agreement.
Debt-to-Income
Ratio:
With
respect to any Mortgage Loan, the ratio of the related Mortgagor’s total
outstanding indebtedness as of the date of the origination of the related
Mortgage Loan to the related Mortgagor’s total gross income for the year
immediately preceding the date of the origination of the related Mortgage
Loan.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
such Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, except such a reduction constituting a Deficient Valuation
or any reduction that results in a permanent forgiveness of
principal.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under the Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any scheduled Monthly Payment that
constitutes a permanent forgiveness of principal, which valuation or reduction
results from a proceeding under the Bankruptcy Code.
Delinquency
Collection Policies and Procedures:
The
policies procedures attached as Exhibit D.
Determination
Date:
With
respect to any Remittance Date, the second Business Day prior to such Remittance
Date.
Due
Date:
With
respect to any Remittance Date, the first day of the month in which such
Remittance Date occurs.
Due
Period:
With
respect to any Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the related
Due
Date.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
-4-
Event
of Default:
As
defined in Section 6.01.
Xxxxxx
Xxx:
Federal
National Mortgage Association, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Fitch:
Fitch,
Inc. or its successor in interest.
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, a corporate instrumentality of the United
States
created and existing under Title III of the Emergency Home Finance Act of
1970,
as amended, or any successor thereto.
Full
Prepayment:
Any
payment of the entire principal balance of a Mortgage Loan which is received
in
advance of its scheduled Due Date and 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.
Insurance
Proceeds:
Proceeds paid in respect of any Mortgage Loan pursuant to any insurance policy
covering such Mortgage Loan to the extent such proceeds are payable to the
mortgagee under the Mortgage, any Subservicer or the Company and are not
applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures set forth in the Program
Guide.
Insured
Expenses:
Expenses covered by any mortgage insurance policy, any replacement insurance
policy or policies or any other insurance policy.
Interim
Certification:
As
defined in Section 2.02.
Liquidated
Mortgage Loan:
A
Mortgage Loan as to which payment has been made to the Company of all
Liquidation Proceeds and other payments or recoveries which the Company deems
to
be finally recoverable.
Liquidation
Expenses:
Expenses which are incurred by the Company in connection with the liquidation
of
any defaulted Mortgage Loan (to the extent such amount is reimbursable under
the
terms of this Agreement or the Program Guide) and not recovered by the Company
under any insurance policy for reasons other than the Company’s failure to
comply with Section 3.09 or 3.10.
Liquidation
Proceeds:
Cash
(including Insurance Proceeds and condemnation proceeds) received in connection
with the liquidation of defaulted Mortgage Loans, whether through trustee’s
sale, condemnation, foreclosure sale or otherwise, net of Liquidation Expenses
and Insured Expenses.
Loan-to-Value
Ratio:
As of
any date, the fraction, expressed as a percentage, the numerator of which
is the
principal balance of the related Mortgage Loan at the date of determination
and
the denominator of which is the Appraised Value of the related Mortgaged
Property.
-5-
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS on
the
MERS® System.
MOM
Loan:
Any
Mortgage Loan where MERS acts as the mortgagee of record of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Advance:
The
aggregate of the advances made by the Company with respect to any Remittance
Date pursuant to Section 4.03, the amount of any such Monthly Advance being
equal to the aggregate of the principal portion of such Monthly Payments
on the
Mortgage Loans which were due on the related Due Date but extended pursuant
to
Section 3.03 or delinquent (in whole or in part) as of the close of business
on
the Business Day next preceding the related Remittance Date, plus the interest
portion of such Monthly Payments adjusted to the related Mortgage Loan
Remittance Rates, and less the amount of any advances which the Company has
determined would constitute Nonrecoverable Monthly Advances, if
made.
Monthly
Payment:
With
respect to any Mortgage Loan and any month, the scheduled monthly payment
of
principal and interest on such Mortgage Loan which is payable by a Mortgagor
in
such month under the related Mortgage Note.
Moody’s:
Xxxxx’x
Investors Service, Inc., or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates either (i) with respect to a Mortgage Loan other than a Cooperative
Loan, a lien on a fee simple interest or leasehold interest in real property
or
(ii) with respect to a Cooperative Loan, the Cooperative Lease and related
Cooperative Stock.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan which shall be delivered to the Custodian, as the duly appointed agent
of
the Owner, or as otherwise agreed by the parties to this Agreement and the
Custodian, if any, in writing, and any additional documents required to be
added
to the Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan. The Mortgage
Interest Rate for each Mortgage Loan will be the rate indicated as the “CURR
RATE” on the Mortgage Loan Schedule.
Mortgage
Loan:
An
individual mortgage loan or Cooperative Loan, as applicable, that is the
subject
of this Agreement and identified on the Mortgage Loan Schedule.
-6-
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the rate per annum designated as the “PASSTHRU
RATE” for such Mortgage Loan on the related Mortgage Loan Schedule.
Mortgage
Loan Schedule:
Each
schedule of Mortgage Loans attached to a Reference Agreement.
Mortgage
Note:
The
originally executed note evidencing the indebtedness of a Mortgagor under
a
Mortgage Loan and any modification thereto.
Mortgage
Pool:
Each
pool of Mortgage Loans conveyed by the Company to the Initial Owner from
time to
time pursuant to an applicable Reference Agreement referencing this
Agreement.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan, including without limitation
with
respect to a Cooperative Loan, the related Cooperative Lease and Cooperative
Stock.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made by the Company which,
in
the judgment of the Company, is not or, in the case of a proposed Monthly
Advance, would not be ultimately recoverable by the Company from Liquidation
Proceeds or otherwise.
Opinion
of Counsel:
A
written opinion of counsel, who may, unless otherwise provided herein, be
counsel for the Company.
Owner:
Any
Person from time to time having an Ownership Interest in the Mortgage
Loans.
Ownership
Interest:
The
undivided ownership interest in the Mortgage Pool.
Partial
Prepayment:
Any
payment of principal on a Mortgage Loan, other than a Full Prepayment, which
is
received in advance of its scheduled Due Date and 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.
Pass-Through
Rate:
As to
any Remittance Date, a rate equal to the weighted average, expressed as a
percentage, of the Mortgage Loan Remittance Rates of all Mortgage Loans in
the
Mortgage Pool as of the close of business on the Due Date in the month preceding
the month in which such Remittance Date occurs, weighted on the basis of
the
respective Principal Balances of such Mortgage Loans, which Principal Balances
shall be the Principal Balances of such Mortgage Loans immediately prior
to such
Remittance Date.
Permitted
Instrument:
As
defined in Section 3.08.
-7-
Person:
Any
individual, corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Plan:
As
defined in Section 2.03.
Pledged
Amount:
With
respect to any Pledged Asset Loan, the amount of money remitted to Combined
Collateral LLC, at the direction of or for the benefit of the related
Mortgagor.
Pledged
Asset Loan:
Any
Mortgage Loan supported by Pledged Assets or other collateral, other than
the
related Mortgaged Property.
Pledged
Assets:
With
respect to any Mortgage Loan, all money, securities, security entitlements,
accounts, general intangibles, instruments, documents, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description pledged by Combined Collateral LLC as security
in
respect of any losses in connection with such Mortgage Loan up to the Pledged
Amount for such Mortgage Loan, and any related collateral, or other
collateral.
Prepayment
Interest Shortfall:
As to
any Remittance Date and any Mortgage Loan (other than a Mortgage Loan relating
to an REO Property) that was the subject of (a) a Full Prepayment during
the
portion of the related Prepayment Period that falls during the prior calendar
month, an amount equal to the excess of one month’s interest at the Mortgage
Loan Remittance Rate on the Principal Balance of such Mortgage Loan over
the
amount of interest (adjusted to the Mortgage Loan Remittance Rate) paid by
the
Mortgagor for such month to the date of such Full Prepayment or (b) a Partial
Prepayment during the prior calendar month, an amount equal to one month’s
interest at the Mortgage Loan Remittance Rate on the amount of such Partial
Prepayment.
Prepayment
Period:
As to
any Remittance Date and a Full Prepayment, the period commencing on the 16th
day
of the month prior to the month in which that Remittance Date occurs and
ending
on the 15th day of the month in which such Remittance Date occurs.
Primary
Insurance Policy:
Each
primary policy of mortgage guaranty insurance or any replacement policy
thereof.
Principal
Balance:
As to
each Mortgage Loan, as of the time of any determination, (i) the principal
balance remaining to be paid by the Mortgagor at the close of business on
the
Cut-off Date, after deduction of all payments due on or before the Cut-off
Date
whether or not paid, minus (ii) all amounts distributed to the Owner with
respect to such Mortgage Loan and reported to the Owner as allocable to
principal, including the principal component of any Monthly Advances and
any
losses incurred with respect to such Mortgage Loan.
-8-
Principal
Remittance Amount:
With
respect to any Remittance Date, the sum of (a) the principal component of
any
Monthly Advance for such Remittance Date; (b) any amount required to be
deposited in the Custodial Account pursuant to Section 3.10(a); (c) any amount
that the Company is not permitted to withdraw from the Custodial Account
pursuant to Section 3.16; and (d) the amount on deposit in the Custodial
Account
as of the close of business on the Determination Date immediately preceding
such
Remittance Date which is allocable to payments on account of principal of
the
Mortgage Loans, which amount shall not include (i) Partial Prepayments and
the
principal portion of any Liquidation Proceeds, Insurance Proceeds or proceeds
of
the purchase of any Mortgage Loan pursuant to Sections 2.02 and 2.04 received
in
the month in which such Remittance Date occurs (other than such Partial
Prepayments, Liquidation Proceeds, Insurance Proceeds or proceeds of the
purchase of any Mortgage Loan pursuant to Sections 2.01(c), 2.02 and 2.04
that
the Company has deemed to have been received in the preceding month) and
Full
Prepayments made after the related Prepayment Period, (ii) payments which
represent receipt of scheduled payments of principal due on a date or dates
subsequent to the related Due Date and (iii) late payments of principal which
have been the subject of a previous Monthly Advance and which are eligible
for
withdrawal pursuant to clauses (ii) or (vii) of Section 3.07.
Program
Guide:
Collectively, the Client Guide and the Servicer Guide for Residential Funding
Corporation’s mortgage loan purchase and conduit servicing program and all
supplements and amendments thereto published by Residential Funding Corporation
from time to time.
Purchase
Price:
As
defined in the Reference Agreement.
Reconstitution:
As
defined in Section 3.18.
Reconstitution
Date:
As
defined in Section 3.18.
Record
Date:
With
respect to each Remittance Date, the close of business on the last Business
Day
of the month next preceding the month in which the related Remittance Date
occurs.
Regulation
AB:
Regulation AB under the Securities Act and the Securities Exchange Act, as
amended from time to time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the
Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Amount:
With
respect to any Remittance Date, an amount equal to, subject to Section 1.02,
(i)
the Principal Remittance Amount (if any) for such Remittance Date, plus (ii)
the
Accrued Interest for such Remittance Date, minus (iii) any amounts payable
to
the Company pursuant to Section 3.07 that are not taken into account in the
adjustment of Accrued Interest pursuant to Section 1.02.
-9-
Remittance
Date:
The
25th day of any month, beginning in the month following the month in which
the
Cut-off Date occurs, or if such 25th day is not a Business Day, the first
Business Day immediately following.
REO
Acquisition:
The
acquisition by the Company on behalf of the Initial Owner of any REO Property
pursuant to Section 3.12.
REO
Property:
A
Mortgaged Property acquired by the Owner or the Company on behalf of the
Owner
through foreclosure or deed in lieu of foreclosure.
Request
for Release:
A
request for release, the form of which is attached as Exhibit G hereto, or
an
electronic request in a form acceptable to the Custodian.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Exchange Act:
The
federal Securities Exchange Act of 1934, as amended.
Securitization
Transfer:
As
defined in Section 3.18.
Security
Agreement:
With
respect to a Cooperative Loan, the agreement creating a security interest
in
favor of the originator in the related Cooperative Stock.
Seller:
As to
any Mortgage Loan, a Person that executed a Seller’s Agreement applicable to
such Mortgage Loan.
Seller’s
Agreement:
An
agreement for the origination and sale of Mortgage Loans in the form referred
to
in the Program Guide or in such other form as has been approved by the
Company.
Servicing
Fee:
As to
each Mortgage Loan, the annual fee, payable monthly to the Company out of
the
interest portion of the Monthly Payment received on each Mortgage
Loan.
Servicing
Fee Rate:
As
defined in the Reference Agreement.
Standard
& Poor’s:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., or its
successor in interest.
Static
Pool Information:
Information described in Item 1105(a) of Regulation AB regarding the
Company.
Subservicer:
Any
Person, including any successor, with whom the Company has entered into a
Subservicing Agreement pursuant to the Program Guide.
-10-
Subservicing
Agreement:
The
written contract between the Company and a Subservicer as may be amended
from
time to time, a representative form of which is attached hereto as Exhibit
C.
With respect to any Pledged Asset Loans subserviced by GMAC Mortgage
Corporation, the Addendum and Assignment Agreement, dated as of November
24,
1998, between the Master Servicer and GMAC Mortgage Corporation, as such
agreement may be amended from time to time.
Subservicing
Fee:
The
annual fee, payable monthly to the Subservicer out of the interest portion
of
the Monthly Payment received on each Mortgage Loan.
Subservicing
Fee Rate:
As to
each Mortgage Loan, the rate per annum set forth in the Mortgage Loan Schedule
as the “SUBSERV FEE”.
Successor
Servicer:
Any
successor master servicer appointed pursuant to Section 8.01.
Section
1.02 Calculations
Respecting Accrued Interest.
(a) The
Accrued Interest on any Remittance Date shall be reduced by the amount of
any
Prepayment Interest Shortfalls with respect to that Remittance Date (to the
extent not offset by the Company with a payment of Compensating Interest).
(b) In
the
event that the Liquidation Proceeds with respect to any Mortgage Loan (net
of
amounts payable or reimbursable therefrom pursuant to Sections 3.07(iii)
and
3.07(iv)) are less than the Principal Balance of such Mortgage Loan, together
with one month’s interest thereon at the applicable Mortgage Loan Remittance
Rate, the Accrued Interest on the Remittance Date in the next succeeding
month
shall be reduced by the amount of such insufficiency. In the event that such
Liquidation Proceeds exceed the sum of the Principal Balance of such Mortgage
Loan plus one month’s interest thereon at the applicable Mortgage Interest Rate,
such excess shall be payable to the Owner unless such Mortgage Loan has been
included in a securitization, in which case the Company shall receive such
excess as additional servicing compensation.
(c) In
the
event that any amount or amounts shall be withdrawn from amounts attributable
to
the Mortgage Loans on deposit in the Custodial Account pursuant to clauses
(ii),
(iii) (other than for servicing compensation), (iv), (v), (vi), (vii), (viii)
or
(ix) of Section 3.07 and the related withdrawal or withdrawals shall not
be
reflected in any adjustment required pursuant to subsections (a) and (b)
above,
the Accrued Interest on the immediately succeeding Remittance Date shall
be
reduced by the total of such amounts so withdrawn to the extent such amounts
would result in a shortfall of Accrued Interest.
(d) In
the
event that as of the end of any Due Period, for any reason (including, without
limitation, acquisition of title to the underlying Mortgaged Property through
foreclosure or acceptance of a deed in lieu of foreclosure, application of
the
Servicemembers Civil Relief Act or similar legislation or regulations as
in
effect from time to time, or a Debt Service Reduction or a Deficient Valuation),
less than the full amount of the interest portion of the Monthly Payment
at the
Mortgage Loan Remittance Rate due on the Due Date in such Due Period on any
Mortgage Loan is deposited in the Custodial Account and no Monthly Advance
is
made or required to be made in respect thereof, the Accrued Interest on the
immediately succeeding Remittance Date shall be reduced by the amount of
such
insufficiency.
-11-
(e) In
the
event that on or in the month of any Due Date (after adjustment for the
Subservicing Fee and the Servicing Fee) more than one month’s interest at the
applicable Mortgage Loan Remittance Rate on the Principal Balance of any
Mortgage Loan is deposited in the Custodial Account as a result of late
recoveries of interest in respect of which no Monthly Advance was made in
respect of such amount, the Accrued Interest on the immediately succeeding
Remittance Date shall be increased by the amount of such excess.
(f) All
references to the Principal Balance of any Mortgage Loan in this Section
1.02
are to the Principal Balance of such Mortgage Loan as of the close of business
on the Remittance Date immediately preceding the Remittance Date in respect
of
which the Accrued Interest thereon is being adjusted pursuant to the applicable
subsection of this Section 1.02 or, in the case of the first Remittance Date,
as
of the Cut-off Date.
-12-
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Mortgage Files.
(a) The
Company, simultaneously with the execution and delivery of the Reference
Agreement, shall hereby sell, transfer and assign, without recourse, to the
Initial Owner the Ownership Interest comprising all the right, title and
interest of the Company in and to the Mortgage Loans, including all interest
at
the applicable Mortgage Loan Remittance Rate and principal received on or
with
respect to the Mortgage Loans after the Cut-off Date set forth in the applicable
Reference Agreement (other than payments of principal and interest due on
the
Mortgage Loans on or before the Cut-off Date) on a servicing retained
basis.
(b) In
connection with the Company’s assignment of the Mortgage Loans to the Initial
Owner pursuant to the Reference Agreement, not later than the date specified
in
the related Reference Agreement, the Company shall deliver to, and deposit
with,
the Custodian, as the duly appointed agent of the Initial Owner for such
purpose, the following original documents or instruments (or copies thereof
as
permitted by this Section) with respect to each Mortgage Loan so assigned:
(i) The
original Mortgage Note, endorsed “Pay to the order of ____________, without
recourse,” and signed in the name of the Company by an authorized officer. Such
signature may be an original signature or a facsimile signature of such officer.
If the Mortgage Loan was acquired by the Company in a merger, the endorsement
must be by “Residential Funding Corporation, successor by merger to [name of
predecessor]”; and if the Mortgage Loan was acquired or originated by the
Company while doing business under another name, the endorsement must be
by
“Residential Funding Corporation, formerly known as [previous name]”. The
Mortgage Note shall include all intervening endorsements showing a complete
chain of title from the originator to the Company. In lieu of the original
Mortgage Note, the Owner will accept lost note affidavits in a form acceptable
to the Owner for up to five percent (5%) of the Mortgage Loans (measured
by
unpaid principal balance).
(ii) Originals
or certified true copies from the appropriate recording offices of all
assumption and modification agreements, if any, or if the original has not
yet
been returned from the recording office, a copy of such original certified
by
the Company.
(iii) Unless
the Mortgage Loan is registered on the MERS System, the original Assignment
of
Mortgage, assigned to ________________, but otherwise in form and substance
acceptable for recording and sent for recording; provided however, that certain
recording information will not be available if, as of the related Closing
Date,
the Company has not received the related Mortgage from the appropriate recording
office. If the Mortgage Loan was acquired by the Company in a merger, the
assignment must be by “Residential Funding Corporation, successor by merger to
[name of predecessor]”; and if the Mortgage Loan was acquired or originated by
the Company while doing business under another name, the assignment must
be by
“Residential Funding Corporation, formerly known as [previous
name]”.
-13-
(iv) With
respect to each Cooperative Loan:
(A) A
counterpart of the Cooperative Lease and the Assignment of Proprietary Lease
to
the originator of the Cooperative Loan with intervening assignments showing
an
unbroken chain of title from such originator to the Initial Owner;
and
(B) The
related Cooperative Stock Certificate, representing the related Cooperative
Stock pledged with respect to such Cooperative Loan, together with an undated
stock power (or other similar instrument) executed in blank.
(c) In
addition, the Company is in possession of the following documents for each
Mortgage Loan (the “Additional Loan Documents”), which shall be delivered to the
Owner or a Custodian designated by the Owner if required in connection with
a
Xxxxxx Xxx Transfer, a Xxxxxxx Mac Transfer, a Whole Loan Transfer or a
Securitization Transfer entered into pursuant to this Agreement:
(i) The
original Mortgage, or a copy of the Mortgage with evidence of recording thereon
certified by the appropriate recording office to be a true copy of the recorded
Mortgage, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage together with a certificate
of
a duly authorized representative of the Company (which certificate may consist
of stamped text appearing on such copy of the Mortgage), the closing attorney
or
an officer of the title insurer which issued the related title insurance
policy,
certifying that the copy is a true copy of the original of the Mortgage which
has been transmitted for recording in the appropriate recording office of
the
jurisdiction in which the Mortgaged Property is located. The Mortgage shall
note
the presence of the MIN of the Mortgage Loan and language indicating that
the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan.
(ii) The
original Assignment of Mortgage, executed in blank, but otherwise in form
and
substance acceptable for recording; provided, however, that certain recording
information will not be available if, as of the Closing Date, the Company
has
not received the related Mortgage from the appropriate recording office.
If the
Mortgage Loan was acquired by the Company in a merger, the assignment must
be by
“Residential Funding Corporation, successor by merger to [name of predecessor]”;
and if the Mortgage Loan was acquired or originated by the Company while
doing
business under another name, the assignment must be by “Residential Funding
Corporation, formerly known as [previous name]”; provided, further, that if the
Mortgage Loan is a MERS Mortgage Loan (and, except in the case of a MOM Loan
where no intervening assignment shall be required, the original or certified
true copy of the recorded Assignment of Mortgage to MERS is provided pursuant
to
clause (iv) below) no Assignment of Mortgage shall be required.
-14-
(iii) Originals,
or certified true copies from the appropriate recording offices, of any
intervening assignments of the Mortgage with evidence of recording thereon,
or,
if the original intervening assignment has not yet been returned from the
recording office, a certified copy of such assignment.
(iv) With
respect to each Cooperative Loan:
(A) The
original recognition agreement by the Cooperative of the interests of the
mortgagee with respect to the related Cooperative Loan;
(B) The
related Security Agreement;
(C) Copies
of
the original UCC-1 financing statement, and any continuation statements,
filed
by the originator of such Cooperative Loan as secured party, each with evidence
of recording thereof, evidencing the interest of the originator under the
Security Agreement and the Assignment of Proprietary Lease;
(D) Copies
of
the filed UCC-3 assignments of the security interest referenced in clause
(B)
above showing an unbroken chain of title from the originator to the Initial
Owner, each with evidence of recording thereof, evidencing the interest of
the
originator under the Security Agreement and the Assignment of Proprietary
Lease;
(E) An
executed assignment of the interest of the originator in the Security Agreement,
Assignment of Proprietary Lease and the recognition agreement referenced
in
clause (A) above, showing an unbroken chain of title from the originator
to the
Initial Owner; and
(F) The
original of each modification, assumption agreement or preferred loan agreement,
if any, relating to such Cooperative Loan.
(d) Notwithstanding
the provisions of Section 2.01(a) or 2.01(b), in the event that in connection
with any Mortgage Loan the Company cannot deliver the original of the Mortgage,
any assignment, modification, assumption agreement or preferred loan agreement
(or a copy thereof as permitted by Section 2.01(a) or 2.01(b)) with evidence
of
recording thereon concurrently with the execution and delivery of this Agreement
because of (i) a delay caused by a public recording office where such Mortgage,
assignment, modification, assumption agreement or preferred loan agreement
as
the case may be, has been delivered for recordation, or (ii) a delay in the
receipt of certain information necessary to prepare the related assignments,
the
Company shall deliver to the Custodian a copy of such Mortgage, assignment,
modification, assumption agreement or preferred loan agreement. The Company
shall promptly deliver to the Custodian such Mortgage, assignment, modification,
assumption agreement or preferred loan agreement with evidence of recording
indicated thereon in accordance with Section 2.01(a) or 2.01(b), as
applicable.
-15-
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Company further agrees that it will, at the Owner’s request and sole
cost and expense, cause the MERS® System to indicate that such Mortgage Loans
have been assigned by the Company to the Owner by including (or, if applicable,
deleting, in the case of Mortgage Loans which are repurchased in accordance
with
this Agreement) in such computer files the code in the field “Pool Field” which
identifies the series in which such loans were sold. The Company further
agrees
that it will not alter the codes referenced in this paragraph with respect
to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
Certain
documents referred to in Section 2.01(a) of the Agreement may be missing
on or
prior to the Closing Date. In the event such missing documents are not provided
within 45 days after the Closing Date except as provided in the preceding
paragraph, the Company shall repurchase the related Mortgage Loans on the
second
Remittance Date after the Closing Date at the Purchase Price for such Mortgage
Loans.
(e) Any
documents required to be delivered to the Custodian by the Company pursuant
to
this Section 2.01 which are in the possession or control of the Company or
a
Subservicer and which are not delivered to the Custodian or are requested
from
the Custodian in connection with the servicing of the Mortgage Loans are
and
shall be held by the Company, either directly or through the related
Subservicer, in trust for the benefit of the Owner.
The
sale
of each Mortgage Loan shall be reflected on the Company’s balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain records for each Mortgage
Loan which shall be clearly marked to reflect the ownership of each Mortgage
Loan by the Owner.
(f) Concurrently
with the execution and delivery hereof, the Company hereby assigns to the
Initial Owner, and the Initial Owner hereby assumes, all of the Company’s rights
and obligations under the Seller’s Agreements with respect to the Mortgage
Loans, insofar as such rights and obligations relate to any representations
and
warranties regarding a Mortgage Loan made by a Seller under any Seller’s
Agreement and any remedies available under the Seller’s Agreement for a breach
of any such representations and warranties.
(g) The
Company hereby assigns to the Initial Owner its security interest in and
to any
Pledged Assets, and its right to receive amounts due or to become due in
respect
of any Pledged Assets pursuant to the related Subservicing Agreement. With
respect to any Pledged Asset Loan, the Company shall cause to be filed in the
appropriate recording office a UCC-3 statement giving notice of the assignment
of the related security interest to the Initial Owner and shall thereafter
cause
the timely filing of all necessary continuation statements with regard to
such
financing statements.
-16-
(h) The
Company agrees that the sale of each Pledged Asset Loan pursuant to this
Agreement will also constitute the assignment, sale, setting-over, transfer
and
conveyance to the Initial Owner, without recourse (but subject to the Company’s
covenants, representations and warranties specifically provided herein),
of all
of the Company’s obligations and all of the Company’s right, title and interest
in, to and under, whether now existing or hereafter acquired as owner of
the
Mortgage Loan with respect to all money, securities, security entitlements,
accounts, general intangibles, instruments, documents, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description consisting of, arising from or related to (i)
the
Assigned Contracts, (ii) all rights, powers and remedies of the Company as
owner
of such Mortgage Loan under or in connection with the Assigned Contracts,
whether arising under the terms of such Assigned Contracts, by statute, at
law
or in equity, or otherwise arising out of any default by the Mortgagor under
or
in connection with the Assigned Contracts, including all rights to exercise
any
election or option or to make any decision or determination or to give or
receive any notice, consent, approval or waiver thereunder, (iii) all security
interests in and lien of the Company as owner of such Mortgage Loan in the
Pledged Amounts and all money, securities, security entitlements, accounts,
general intangibles, instruments, documents, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description and all cash and non-cash proceeds of the sale,
exchange, or redemption of, and all stock or conversion rights, rights to
subscribe, liquidation dividends or preferences, stock dividends, rights
to
interest, dividends, earnings, income, rents, issues, profits, interest payments
or other distributions of cash or other property that is credited to the
Custodial Account, (iv) all documents, books and records concerning the
foregoing (including all computer programs, tapes, disks and related items
containing any such information) and (v) all insurance proceeds (including
proceeds from the Federal Deposit Insurance Corporation or the Securities
Investor Protection Corporation or any other insurance company) of any of
the
foregoing or replacements thereof or substitutions therefor, proceeds of
proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and
is
not intended to result in the creation, or an assumption by the Initial Owner,
of any obligation of the Company, or any other person in connection with
the
Pledged Assets or under any agreement or instrument relating thereto, including
any obligation to the Mortgagor, other than as owner of the Mortgage
Loan.
Section
2.02 Acceptance
by the Initial Owner.
The
Initial Owner, upon its receipt of the Initial Certification (as found on
Exhibit 1 of the Custodial Agreement attached hereto as Exhibit B) from the
Custodian acknowledges receipt by the Custodian as the duly appointed agent
of
the Owner of the documents referred to in Section 2.01 above and declares
that
the Custodian, as its agent, holds and will hold such documents and the other
documents constituting a part of the Mortgage Files delivered to the Custodian,
as its agent, and the rights of the Company with respect to any Pledged Assets,
in trust for the use and benefit of the Initial Owner and any other future
Owner. Pursuant to the Custodial Agreement, the Custodian shall notify the
Owner
and the Company if any document or documents constituting a part of the Mortgage
File are missing or defective in respect of the items reviewed by it pursuant
to
the Custodial Agreement. The Owner shall notify the Company and the Custodian
of
any such omission or defect which it finds in respect of any Mortgage Loan.
If
such omission or defect materially and adversely affects the interests of
the
Owner, the Company shall promptly notify the related Subservicer or Seller
of
such omission or defect and request that such Subservicer or Seller correct
or
cure such omission or defect within 60 days from the date the Company was
notified of such omission or defect and, if such Subservicer or Seller does
not
correct or cure such omission or defect within such period, that such
Subservicer or Seller purchase such Mortgage Loan from the Owner within 90
days
from the date the Company was notified of such omission or defect by depositing
in the Custodial Account or otherwise delivering the Purchase Price for such
Mortgage Loan to the Company. The Company shall exercise reasonable efforts
to
enforce the related Subservicer’s or Seller’s obligation to purchase such
Mortgage Loan from the Owner and, failing the related Subservicer’s or Seller’s
purchase of such Mortgage Loan, the Company shall either (i) correct or cure
such omission or defect in respect of such Mortgage Loan or (ii) purchase
at the
Purchase Price such Mortgage Loan from the Owner within 120 days from the
date
the Company was notified of such omission or defect. Upon receipt from the
Subservicer, Seller or the Company, as the case may be, such Purchase Price
shall be deposited by the Company in the Custodial Account. Upon receipt
by the
Owner of written notification of such deposit signed by an officer of the
Company, the Custodian shall release to the Company the related Mortgage
File
and the Owner shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest
in the
Seller or its designee or the Subservicer or its designee, as the case may
be,
any Mortgage Loan released pursuant hereto. In furtherance of the foregoing,
if
the Subservicer or Seller that repurchases the Mortgage Loan is not a member
of
MERS, and the Mortgage is registered on the MERS® System, the Company shall
cause MERS to execute and deliver an Assignment in recordable form to transfer
the Mortgage from MERS to such Subservicer or Seller and shall cause such
Mortgage to be removed from registration on the MERS® System in accordance with
MERS’ rules and regulations. The obligation of the Seller or the Subservicer, as
the case may be, to cure any material and adverse omissions or defects with
respect to any Mortgage Loan or to purchase any Mortgage Loan as to which
a
material and adverse defect in or omission of a constituent document exists
shall constitute the sole remedy respecting such defect or omission available
to
the Owners.
-17-
Section
2.03 Assignment
of Mortgage Loans.
The
Initial Owner shall have the right to assign its interest under this Agreement
with respect to the Mortgage Loans in whole but not in part and designate
any
person to exercise any rights of the Owner hereunder with respect to the
Mortgage Loans, and the assignee or designee shall accede to the rights and
obligations hereunder of the Owner with respect to the Mortgage Loans;
provided,
however,
that
(i) the Mortgage Loans shall at all times be subject to the terms of this
Agreement; and (ii) the Initial Owner may assign its interest under this
Agreement to no more than three Persons; and provided
further, however,
that
the company shall be given thirty days’ prior written notice before any such
assignment shall be effective. Prior to assigning its interests under this
Agreement, the Owner shall deliver a copy of this Agreement to such assignee
or
designee. Each assignee or designee may assign its interest in the Mortgage
Loans owned by it in whole, and not in part, to no more than three Persons;
provided, however, that at no time may there be more than three Owners. No
sale
or transfer of the Mortgage Loans or assignment of this Agreement shall be
binding upon the Company for any purpose under this Agreement unless the
Owner
proposing to make such sale, transfer or assignment and its prospective assignee
have executed and delivered to the Company (with a copy to the Custodian)
an
assignment and assumption agreement in the form of Exhibit E annexed hereto
and
the Company has acknowledged such agreement. No sale of the Mortgage Loans
shall
be made to any employee benefit plan or other plan that is subject to ERISA
or
Section 4975 of the Code (each, a “Plan”) or to any person or entity that is
investing on behalf of or with “plan assets” of any Plan or to any insurance
company, other than an insurance company investing with funds held in its
general account (if such funds do not include “plan assets” of any Plan), unless
the Owner’s prospective assignee provides the Company with a certification or
Opinion of Counsel or both, which establishes to the Company’s satisfaction that
such disposition will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code. The
Company
shall not be required to pay any costs or expenses incurred in connection
with
obtaining such Opinion of Counsel. The Company may require that such prospective
assignee certify to the Company in writing the facts establishing that such
disposition will not violate the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code.
-18-
The
sale
of the Mortgage Loans has not been registered or qualified under the Securities
Act or any state securities law. No sale, transfer, pledge or other disposition
of the Mortgage Loans or any interest therein shall be made unless such
disposition is made pursuant to an effective registration statement under
the
Securities Act and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require
such
registration or qualification. If an Owner proposes to make a disposition
(by
sale, hypothecation, pledge or otherwise) without registration or qualification,
the Company shall require, in order to assure compliance with such laws,
that
the Owner desiring to effect the disposition, and the Owner’s prospective
transferee, certify to the Company in writing the facts surrounding the
disposition. Unless the Company requests otherwise, such certification of
facts
shall be in the form of an assignment and assumption agreement annexed hereto
as
Exhibit E. In the event that such certification of facts does not on its
face
establish that registration or qualification is not required, the Company
may
require an Opinion of Counsel satisfactory to it that the transfer may be
made
without such registration or qualification. Any such Opinion of Counsel shall
not be an expense of the Company. The Company is not obligated to register
or
qualify the Mortgage Loans under the Securities Act or any other securities
law
or to take any action not otherwise required under this Agreement to permit
the
transfer of the Mortgage Loans without registration or
qualification.
Upon
compliance with the foregoing conditions and receipt of an assignment and
assumption agreement executed by the Owner and its prospective assignee and
acknowledged by the Company, the Company shall make the appropriate notations
in
its books to reflect the sale of the affected Mortgage Loans to such assignee,
such assignee shall accede to the rights and the obligations of the Owner
hereunder with respect to such Mortgage Loans, and the Owner shall be released
from its obligations hereunder with respect to such Mortgage Loans that have
been sold in accordance with this Agreement. For the purposes of this Agreement,
the Company shall be under no obligation to deal with any Person with respect
to
this Agreement or the Mortgage Loans unless the books and records of the
Company
show such Person as the Owner of such Mortgage Loans. The Company shall not
be
responsible for expenses incurred by the Owner or any transferee in connection
with any sale or transfer pursuant to this Section 2.03.
-19-
Section
2.04 Representations
and Warranties of the Company.
(a) The
Company hereby represents and warrants to the Initial Owner that as of the
Closing Date or such other date specifically provided for herein:
(i) The
Company is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and is or will be in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(ii) The
execution and delivery of this Agreement by the Company and its performance
and
compliance with the terms of this Agreement will not violate the Company’s
Certificate of Incorporation or Bylaws or constitute a material default (or
an
event which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which the Company is a party or which may
be
applicable to the Company or any of its assets;
(iii) This
Agreement, assuming due authorization, execution and delivery by the Initial
Owner, constitutes a valid, legal and binding obligation of the Company,
enforceable against it in accordance with the terms hereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the
enforcement of creditors’ rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law;
(iv) The
Company is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the
Company
or its properties or might have consequences that would materially adversely
affect its performance hereunder;
(v) No
litigation is pending or, to the best of the Company’s knowledge, threatened
against the Company which would prohibit its entering into this Agreement
or
performing its obligations under this Agreement;
(vi) The
Company will comply in all material respects in the performance of this
Agreement;
(vii) No
information, certificate of an officer, statement furnished in writing or
report
delivered by the Company to the Initial Owner will, to the knowledge of the
Company, contain any untrue statement of a material fact or omit a material
fact
necessary to make the information, certificate, statement or report not
misleading;
-20-
(viii) The
Company is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS;
(ix) The
performance of the Company’s obligations under this Agreement and the
consummation of the transactions contemplated hereby do not require any consent,
approval, authorization or order of, filing with or notice to any State of
Minnesota agency or other governmental body, except such as may be required
under the securities laws of any state or such as have been obtained, effected
or given;
(x) Each
Mortgage Loan was originated by a Seller that was in good standing with the
Company as a seller under the Program Guide at the time of purchase of the
Mortgage Loan by the Company;
(xi) The
electronic data file listing the Mortgage Loans and characteristics thereof
provided to the Initial Owner by the Company prior to the Closing Date is
true
and correct in all material respects; and
(xii) The
Company has complied with all anti-money laundering laws, including without
limitation the USA Patriot Act of 2001, and regulations currently in effect
and
applicable to it.
(b) The
Company further represents and warrants to the Initial Owner that as of the
Closing Date or such other date specifically provided for herein, unless
otherwise specified in the Reference Agreement:
(i) The
information set forth in the Mortgage Loan Schedule with respect to each
Mortgage Loan or the Mortgage Loans, as the case may be, is true and correct,
in
all material respects;
(ii) No
action, error, omission, misrepresentation, negligence, fraud, identity theft
or
similar occurrence in respect of a Mortgage Loan has taken place, nor has
any
incident or action that would give rise to a claim or alleged claim of any
action, error, omission, misrepresentation, negligence, fraud, identity theft
or
similar occurrence in respect of a Mortgage Loan taken place on the part
of any
Person including, without limitation, the Mortgagor, any appraiser, any builder
or developer or any party involved in the origination of the Mortgage Loan
or in
the application of any insurance in relation to such Mortgage Loan that might
result in a denial, contesting, failure or impairment of full and timely
coverage under any insurance policies required to be obtained or any pool
insurance policy covering such Mortgage Loan;
(iii) Each
Primary Insurance Policy insures the named insured and its successors and
assigns, and the issuer of the Primary Insurance Policy is an insurance company
whose claims-paying ability is currently acceptable to any nationally recognized
rating agency;
-21-
(iv) Immediately
prior to the assignment of the Mortgage Loans to the Initial Owner, the Company
had good title to, and was the sole owner of, each Mortgage Loan free and
clear
of any pledge, lien, encumbrance or security interest (other than rights
to
servicing and related compensation), and no action has been taken or failed
to
be taken by the Company that would materially adversely affect the
enforceability of any Mortgage Loan or the interests therein of any holder
of
the Mortgage Loans;
(v) No
Mortgage Loan was 30 or more days delinquent in payment of principal and
interest as of the Cut-off Date and no Mortgage Loan has been so delinquent
in
the 12-month period prior to the Cut-off Date;
(vi) Subject
to clause (v) above as respects delinquencies, there is no default, breach,
violation or event of acceleration existing under any Mortgage Note or Mortgage
and no event which, with notice and expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and
no
such default, breach, violation or event of acceleration has been waived
by the
Seller or by any other entity involved in originating or servicing a Mortgage
Loan;
(vii) There
is
no delinquent tax or assessment lien against any Mortgaged
Property;
(viii) The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or Federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated;
(ix) There
are
no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien
of the related Mortgage, except such liens that are insured or indemnified
against by a title insurance policy described under clause (xiv)
below;
(x) Each
Mortgaged Property is free of damage and in good repair and no notice of
condemnation has been given with respect to any pending or threatened proceeding
for the total or partial condemnation of the Mortgaged Property, and the
Company
knows of nothing involving any Mortgaged Property that could reasonably be
expected to materially adversely affect the value or marketability of any
Mortgaged Property;
(xi) Each
Mortgage Loan as of the time of its origination and as of the Closing Date
complied in all material respects with all applicable local, state and federal
laws including, but not limited to, all applicable anti-predatory lending
laws;
any and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity and disclosure laws or unfair
and
deceptive practices laws applicable to the Mortgage Loan including, without
limitation, any provisions relating to prepayment penalties, have been complied
with; the consummation of the transactions contemplated hereby will not involve
the violation of any such laws or regulations;
-22-
(xii) Each
Mortgage contains customary and enforceable provisions which render the rights
and remedies of the holder adequate to realize the benefits of the security
against the Mortgaged Property, including (A) in the case of a Mortgage that
is
a deed of trust, by trustee’s sale, (B) by summary foreclosure, if available
under applicable law, and (C) otherwise by foreclosure, and there is no
homestead or other exemption available to the Mortgagor that would interfere
with such right to sell at a trustee’s sale or right to foreclosure, subject in
each case to applicable federal and state laws and judicial precedents with
respect to bankruptcy and right of redemption;
(xiii) With
respect to each Mortgage that is a deed of trust, a trustee duly qualified
under
applicable law to serve as such is properly named, designated and serving,
and
except in connection with a trustee’s sale after default by a Mortgagor, no fees
or expenses are payable by the Company to the trustee under any Mortgage
that is
a deed of trust;
(xiv) A
policy
of title insurance in the form and amount required by the Program Guide was
effective as of the closing of each Mortgage Loan, is valid and binding and
remains in full force and effect, unless the Mortgaged Properties are located
in
the State of Iowa and an attorney’s certificate has been provided as described
in the Program Guide;
(xv) The
Company has no actual knowledge of the presence of, nor reasonable grounds
to
suspect the presence of, any toxic materials or other environmental hazards
on,
in or that could affect any of the Mortgaged Property. The Mortgaged Property
is
in compliance with all local, State or federal environmental laws or
regulations;
(xvi) The
improvements upon the Mortgaged Properties are insured against loss by fire
and
other hazards as required by the Program Guide including flood insurance
if
required under the National Flood Insurance Act of 1968, as amended. The
Mortgage requires the Mortgagor to maintain such casualty insurance at the
Mortgagor’s expense, and on the Mortgagor’s failure to do so, authorize the
holder of the Mortgage to obtain and maintain such insurance at the Mortgagor’s
expense and to seek reimbursement therefore from the Mortgagor;
(xvii) If
any of
the Mortgage Loans are secured by a leasehold interest, with respect to each
leasehold interest: the use of leasehold estates for residential properties
is
an accepted practice in the area where the related Mortgaged Property is
located; residential property in such area consisting of leasehold estates
is
readily marketable; the lease is recorded and no party is in any way in breach
of any provision of such lease; the leasehold is in full force and effect
and is
not subject to any prior lien or encumbrance by which the leasehold could
be
terminated or subject to any charge or penalty; and the remaining term of
the
lease does not terminate less than ten years after the maturity date of such
Mortgage Loan;
-23-
(xviii) Each
Assigned Contract relating to each Pledged Asset Mortgage Loan is a valid,
binding and legally enforceable obligation of the parties thereto, enforceable
in accordance with their terms, except as limited by bankruptcy, insolvency
or
other similar laws affecting generally the enforcement of creditor’s
rights;
(xix) The
Company is the holder of all of the right, title and interest as owner of
each
Pledged Asset Mortgage Loan in and to each of the Assigned Contracts delivered
and sold to the Initial Owner hereunder, and the assignment hereof by the
Company validly transfers such right, title and interest to the Initial Owner
free and clear of any pledge, lien, or security interest or other encumbrance
of
any Person;
(xx) The
full
amount of the Pledge Amount with respect to such Pledged Asset Mortgage Loan
has
been deposited with the custodian under the Credit Support Pledge Agreement
and
is on deposit in the custodial account held thereunder as of the date
hereof;
(xxi) The
Company is a member of MERS, in good standing, and current in payment of
all
fees and assessments imposed by MERS;
(xxii) No
instrument of release or waiver has been executed in connection with the
Mortgage Loans, and no Mortgagor has been released, in whole or in part from
its
obligations in connection with a Mortgage Loan;
(xxiii) With
respect to each Mortgage Loan, the Mortgage Loan contains a customary provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event the related Mortgaged Property is sold without
the
prior consent of the mortgagee thereunder;
(xxiv) The
proceeds of the Mortgage Loan have been fully disbursed, there is no requirement
for future advances thereunder and any and all requirements as to completion
of
any on-site or off-site improvements and as to disbursements of any escrow
funds
therefor (including any escrow funds held to make Monthly Payments pending
completion of such improvements) have been complied with. All costs, fees
and
expenses incurred in making, closing or recording the Mortgage Loans were
paid;
(xxv) The
appraisal was made by an appraiser who satisfies the requirements of Xxxxxx
Xxx
or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in
effect on the date the Mortgage Loan was originated;
-24-
(xxvi) Any
escrow arrangements established with respect to any Mortgage Loan are in
compliance with all applicable local, state and federal laws and are in
compliance with the terms of the related Mortgage Note;
(xxvii) Each
Mortgage Loan was originated (A) by a savings and loan association, savings
bank, commercial bank, credit union, insurance company or similar institution
that is supervised and examined by a federal or state authority, (B) by a
mortgagee approved by the Secretary of HUD pursuant to Sections 203 and 211
of
the National Housing Act, as amended, or (C) by a mortgage broker or
correspondent lender in a manner such that any mortgage-backed securities
backed
by the Mortgage Loan would not fail to qualify as “mortgage related securities”
within the meaning of Section 3(a)(41) of the Securities Exchange Act of
1934,
as amended;
(xxviii) All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Properties lie wholly within the boundaries and the building
restriction lines of the Mortgaged Properties, or the policy of title insurance
affirmatively insures against loss or damage by reason of any violation,
variation, encroachment or adverse circumstance that either is disclosed
or
would have been disclosed by an accurate survey;
(xxix) Each
Mortgage Note and Mortgage constitutes a legal, valid and binding obligation
of
the Borrower enforceable in accordance with its terms (including, without
limitation, any provisions therein relating to prepayment premiums) except
as
limited by bankruptcy, insolvency or other similar laws affecting generally
the
enforcement of creditor’s rights;
(xxx) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(xxxi) To
the
best of the Company’s knowledge, no Mortgagor has filed for relief under the
Servicemembers Civil Relief Act or any similar state laws;
(xxxii) Each
Mortgage constitutes a valid, subsisting, enforceable and perfected first
lien
on the related Mortgaged Property subject only to (A) the lien of current
real
property taxes and assessments, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of the Mortgage, and such other permissible title exceptions as
are
listed in the Program Guide, and (C) other matters to which like properties
are
commonly subject which do not materially adversely affect the value, use,
enjoyment and marketability of the Mortgaged Property;
(xxxiii) No
Mortgage Loan secured by a property located in the State of Georgia was
originated on or after October 1, 2002 and before March 7,
2003;
(xxxiv) None
of
the Mortgage Loans are loans that, under applicable state or local law in
effect
at the time of origination of the loan, are referred to as (A) classified
as a
“high cost” home,” “threshold,” “covered,” “high risk home,” “predatory” or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or (B)
categorized as High Cost or Covered pursuant to Appendix E of Standard &
Poor’s Glossary. For avoidance of doubt, the parties agree that this definition
shall apply to any law regardless of whether such law is presently, or in
the
future becomes, the subject of judicial review or litigation;
-25-
(xxxv) No
Mortgage Loan is subject to the provisions of the Home Ownership and Equity
Protection Act of 1994 (“HOEPA”);
(xxxvi) No
Mortgage Loan originated on or after October 1, 2002 provides for the payment
of
a prepayment premium beyond the three year term following the origination
of the
Mortgage Loan. No Mortgage Loan originated prior to such date provides for
the
payment of a prepayment premium beyond the five-year term following the
origination of the Mortgage Loan;
(xxxvii) The
Company has fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (i.e.,
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;
(xxxviii) Article
XVI, Section 50(a)(6) of the Texas Constitution is not applicable to the
Mortgage Loan or the origination thereof. If the Mortgage Loan was originated
in
Texas, it is not a cash-out refinancing;
(xxxix) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of Cooperative Stock, in the case of a Cooperative
Loan, or real property with a detached single family residence erected thereon,
or a two- to four-family dwelling, or an individual condominium unit in a
low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case
four
stories or less, provided, however, that no Mortgage Loan is secured by a
mobile
home or by a mixed-use property. As of the date of origination, no portion
of
the Mortgaged Property was used for commercial purposes, and since the date
of
origination, to the Company’s knowledge, no portion of the Mortgaged Property
has been used for commercial purposes; provided, that Mortgaged Properties
that
contain a home office shall not be considered as being used for commercial
purposes as long as the Mortgaged Property has not been altered for commercial
purposes.
(xl) With
respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (A) the related manufactured housing unit is permanently
affixed to the land, and (B) the related manufactured housing unit and the
related land are subject to a Mortgage properly filed in the appropriate
public
recording office and naming the Seller as mortgagee and (C) the related
Mortgaged Property is not located in the state of New Jersey;
-26-
(xli) The
Assignment of Mortgage (except with respect to any Mortgage that has been
recorded in the name of MERS or its designee), with respect to each Mortgage
Loan is in recordable form and is acceptable for recording under the laws
of the
jurisdiction in which the Mortgaged Property is located. The transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by the
Seller
are not subject to the bulk transfer or similar statutory provisions in effect
in any applicable jurisdiction;
(xlii) No
Mortgage Loan was made in connection with the construction of a Mortgaged
Property;
(xliii) Each
Mortgage Loan has been serviced in accordance with Accepted Servicing
Practices;
(xliv) In
connection with the origination of any Mortgage Loan, no proceeds from any
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident, unemployment,
or
health insurance product) or debt cancellation agreement as a condition of
obtaining the extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g., life, disability, accident, unemployment,
mortgage, or health insurance) in connection with the origination of the
Mortgage Loan; no proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as part
of the
origination of, or as a condition to closing, such Mortgage Loan;
(xlv) Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of
these
contracts is assignable to the Owner;
(xlvi) The
Mortgagor is one or more natural persons and/or trustees for an Illinois
land
trust or a trustee under a “living trust” and such “living trust” is in
compliance with Xxxxxx Mae guidelines for such trusts;
(xlvii) Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
the MERS identification system, all subsequent assignments of the original
Mortgage (other than the assignment to the Owner) have been recorded in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of
being
recorded;
(xlviii) The
Mortgage Loan is not subject to any outstanding litigation for fraud,
origination, predatory lending, servicing or closing practices;
(xlix) With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the Mortgagor to
submit
to arbitration to resolve any dispute arising thereunder or in connection
with
the origination of such Mortgage Loan;
-27-
(l) To
the
knowledge of the Company, the Mortgaged Property is lawfully occupied under
applicable law. To the knowledge of the Company, all inspections, licenses
and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(li) With
respect to each Cooperative Loan, each Security Agreement creates a valid,
enforceable and subsisting first security interest in the collateral securing
the related Mortgage Note subject only to (A) the lien of the related
Cooperative for unpaid assessments representing the obligor’s pro rata share of
the Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (B) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Cooperative
Project;
(lii) With
respect to each Cooperative Loan, there is no default in complying with the
terms of the Mortgage Note, the Security Agreement and the Proprietary Lease
and
all maintenance charges and assessments (including assessments payable in
the
future installments, which previously became due and owing) have been paid,
and
the Seller has the right under the terms of the Mortgage Note, Security
Agreement and Recognition Agreement to pay any maintenance charges or
assessments owed by the Mortgagor;
(liii) With
respect to each Cooperative Loan, a Cooperative Lien Search has been made
by a
company competent to make the same, which company is acceptable to Xxxxxx
Xxx
and Xxxxxxx Mac and qualified to do business in the jurisdiction where the
Cooperative Apartment is located;
(liv) With
respect to each Cooperative Loan, (A) the term of the related Proprietary
Lease
is longer than the term of the Cooperative Loan and (B) there is no
prohibition in any Proprietary Lease against pledging the Cooperative Stock
or
assigning the Proprietary Lease;
(lv) With
respect to each Cooperative Loan, each original UCC financing statement,
continuation statement or other governmental filing or recordation necessary
to
create or preserve the perfection and priority of the first priority lien
and
security interest in the Cooperative Stock and Proprietary Lease has been
timely
and properly made; and
(lvi) With
respect to each Cooperative Loan, each Security Agreement contains enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization of the benefits of the security provided thereby.
The Security Agreement contains an enforceable provision for the acceleration
of
the payment of the Unpaid Principal Balance of the Mortgage Note in the event
the Cooperative Apartment is transferred or sold without the consent of the
holder thereof..
-28-
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 and Section 4 of the Reference Agreement shall survive the sale
of
the Mortgage Loans and shall inure to the benefit of the Owner, notwithstanding
any restrictive or qualified endorsement or assignment. Upon discovery by
either
the Company or the Owner of a breach of any of the representations and
warranties in this Section 2.04 or Section 4 of the Reference Agreement that
materially and adversely affects the interest of the Owner in the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other. Within 60 days of its discovery or its receipt of notice
of
any such breach, the Company shall (i) cure such breach in all material
respects or (ii) repurchase such Mortgage Loan at the Purchase Price, together
with all expenses incurred by the Owner as a result of such repurchase and,
if
the Company is no longer the servicer of such Mortgage Loan, all unreimbursed
servicing advances made by the Successor Servicer with respect to such Mortgage
Loan. The Purchase Price for the repurchased Mortgage Loan shall be deposited
by
the Company in the Custodial Account and, upon receipt by the Owner of such
Purchase Price, together with all expenses incurred by the Owner as a result
of
such repurchase and, if the Company is no longer the servicer of such Mortgage
Loan, all unreimbursed servicing advances made by the Successor Servicer
with
respect to such Mortgage Loan, the Owner shall cause the Custodian to promptly
deliver the related Mortgage File to the Company. Notwithstanding the above
sentence, within 60 days of the earlier of either discovery by, or notice
to,
the Company of any breach of the representations or warranties set forth
in
clauses (xi), (xxx), (xxxiv), (xxxv), (xxxvi), (xxxvii) or (xlix) of this
Section 2.04, the Company shall repurchase such Mortgage Loan at the Purchase
Price, together with all expenses incurred by the Owner as a result of such
repurchase and, if the Company is no longer the servicer of such Mortgage
Loan,
all unreimbursed servicing advances made by the Successor Servicer with respect
to such Mortgage Loan,. The Company shall prepare the Assignment of the related
Mortgage for execution by or at the direction of the Owner, as applicable,
and
shall pay all costs and expenses reasonably incurred by the Owner in effecting
the reconveyance of a repurchased Mortgage Loan including, without limitation,
the cost of recording the Assignment of the related Mortgage for any Mortgage
Loan that is not registered with MERS. With respect to those representations
and
warranties that are made to the Company’s knowledge other than the
representations included in Section 2.04(b)(l), if it is discovered by the
Company or the Owner that the substance of such representation and warranty
is
inaccurate and such inaccuracy materially and adversely affects the interest
of
the Owner in the related Mortgage Loan, notwithstanding the Company’s lack of
knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation
and
warranty.
In
addition to such repurchase obligation, the Company shall indemnify the Owner,
its successors and assigns and the Successor Servicer as specified in Section
5.01. It is understood and agreed that the obligations of the Company set
forth
in this Section 2.04 to cure, or repurchase a defective Mortgage Loan, and
in
Section 5.01 to indemnify the Owner, its successors and assigns and the
Successor Servicer constitute the sole remedies respecting a breach of the
foregoing representations and warranties.
-29-
Section
2.05 Representations,
Warranties and Covenants of the Initial Owner.
The
Initial Owner hereby represents and warrants to, and covenants with, the
Company
that as of the Closing Date:
(i) The
Initial Owner understands that the Mortgage Loans have not been registered
under
the Securities Act or the securities laws of any state. The Initial Owner
is
acquiring the Mortgage Loans for investment for its own account only and
not
with a view to or for sale or other transfer in connection with any distribution
of the Mortgage Loans in any manner that would violate the Securities Act
or any
applicable state securities law. The Initial Owner considers itself a
substantial, sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of investment in the Mortgage Loans. The Initial Owner
has
been furnished with all information regarding the Mortgage Loans that it
has
requested from the Company. Neither the Initial Owner nor anyone acting on
its
behalf has offered, transferred, pledged, sold or otherwise disposed of the
Mortgage Loans or any interest in the Mortgage Loans to, or solicited any
offer
to buy or accept a transfer, pledge or other disposition of the Mortgage
Loans
or any interest in the Mortgage Loans from, or otherwise approached or
negotiated with respect to the Mortgage Loans, any interest in the Mortgage
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,
which
would constitute a distribution of the Mortgage Loans under the Securities
Act
or which would render the disposition of the Mortgage Loans a violation of
Section 5 of the Securities Act or require registration pursuant thereto,
nor
will it act, nor has it authorized or will it authorize any person to act,
in
such manner with respect to the Mortgage Loans;
(ii) The
Initial Owner is either (a) not a Plan that is subject to ERISA or Section
4975
of the Code and not a Person acting, directly or indirectly, on behalf of
or
investing with “plan assets” of any such Plan or (b) an employee benefit plan
that is subject to ERISA or Section 4975 of the Code and the transaction
contemplated herein does not constitute and will not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code;
(iii) The
Company and Initial Owner have executed this Agreement and the Reference
Agreement contemporaneously with the sale of the Mortgage Loans by the Company
to the Initial Owner and the transfer of the purchase price by the Initial
Owner
to the Company. The Board of Directors of the Initial Owner has approved
this
Agreement and the Reference Agreement and such approval is reflected in the
minutes of the Board of Directors;
(iv) The
Initial Owner shall maintain this Agreement and the Reference Agreement
continuously, from the time of their execution, as an official record of
the
Initial Owner; and
(v) The
Initial Owner has the full power and authority to purchase the Mortgage Loans
and to execute, deliver and perform and to enter into and consummate all
transactions contemplated by this Agreement and the Reference Agreement,
has
duly authorized the execution and delivery of this Agreement and the Reference
Agreement, and this Agreement and the Reference Agreement each constitute
the
legal, valid and binding obligation of the Initial Owner, enforceable against
it
in accordance with their respective terms.
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Notwithstanding
the foregoing, the Initial Owner shall indemnify the Company for any loss
or
liability incurred by the Company arising (i) from any breach of warranty
or
representation of the Initial Owner made herein that materially and adversely
affects the interests of the Company or (ii) by reasons of willful misfeasance,
bad faith or negligence of the Initial Owner in the performance of its duties
hereunder or by reason of reckless disregard of its obligations and duties
hereunder.
Section
2.06 Protection
of
Confidential Information and Consumer Information. (a) The
Owner
agrees that the Sellers are customers of the Company and that the relationships
between the Company and such Sellers are confidential (the “Confidential
Information”). The Owner agrees that it shall not directly solicit the Sellers
of Mortgage Loans for the purpose of purchasing loans similar to the Mortgage
Loans from any such Seller following the Closing Date unless (i) such a
relationship already exists between the Owner or its affiliates and such
Seller,
(ii) such a purchase of a mortgage loan is established by a broker or agent
of
the Owner, which agent or broker is acting independently, and neither the
Owner
nor its affiliates have provided such broker or agent with any Confidential
Information, or (iii) such a purchase of a mortgage loan is in the Owner’s
ordinary course of business and is not based on the use of Confidential
Information. The Owner and the Company shall keep confidential and shall
not,
without the Company’s or Owner’s prior written consent, divulge to any party the
price paid by the Owner for the Mortgage Loans, except to the extent that
it is
appropriate for the Owner or the Company to do so in working with legal counsel,
auditors, taxing authorities or other governmental agencies.
(b) The
Owner
agrees that the Owner (i) shall comply with any applicable laws and regulations
regarding the privacy and security of Consumer Information, (ii) shall not
use
Consumer Information in any manner inconsistent with any applicable laws
and
regulations regarding the privacy and security of Consumer Information, (iii)
shall not disclose Consumer Information to third parties except as permitted
or
required by applicable law and regulations, (iv) shall maintain adequate
physical, technical and administrative safeguards to protect Consumer
Information from unauthorized access, and (v) shall immediately notify the
Company of any actual or suspected breach of the confidentiality of Consumer
Information.
The
Owner
shall indemnify, defend and hold the Company harmless from and against any
loss,
claim or liability the Company may suffer by reason of the Owner’s failure to
perform the obligations set forth in this Section 2.06(b).
(c) The
Company agrees that the Company (i) shall comply with any applicable laws
and
regulations regarding the privacy and security of Consumer Information, (ii)
shall not use Consumer Information in any manner inconsistent with any
applicable laws and regulations regarding the privacy and security of Consumer
Information, (iii) shall not disclose Consumer Information to third parties
except as permitted or required by applicable law and regulations, (iv) shall
maintain adequate physical, technical and administrative safeguards to protect
Consumer Information from unauthorized access, and (v) shall immediately
notify
the Owner of any actual or suspected breach of the confidentiality of Consumer
Information.
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The
Company shall indemnify, defend and hold the Owner harmless from and against
any
loss, claim or liability the Owner may suffer by reason of the Company’s failure
to perform the obligations set forth in this Section 2.06(c).
(d) The
agreements under this Section 2.06 shall survive any termination of this
Agreement.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Company
to Act as Servicer.
The
Company shall act as master servicer, and in such capacity shall service
and
administer the Mortgage Loans in accordance with this Agreement and Accepted
Servicing Practices, and in connection therewith shall follow such procedures
as
it would employ in its good faith business judgment which are normal and
usual
in its general mortgage servicing activities for mortgage loans similar to
the
Mortgage Loans, and as if the loans were owned by the Company. The Company
shall
have full power and authority to the extent provided herein, acting alone
and/or
through the Subservicer as provided in Section 3.02, to do or cause to be
done
any and all things which it may deem necessary or desirable in connection
with
such servicing and administration. The Company will perform its duties and
obligations as master servicer hereunder in accordance with all applicable
laws
in all material respects. The Owner shall furnish the Company and any
Subservicer with any powers of attorney and other documents necessary or
appropriate to enable the Company to service and administer the Mortgage
Loans.
Section
3.02 Agreements
Between Company and Subservicer.
The
Company may enter into one or more Subservicing Agreements with one or more
Subservicers for the servicing and administration of the Mortgage Loans.
Each
Subservicer shall be approved by the Company as a servicer in accordance
with
the terms and conditions of the Program Guide and shall be entitled to receive
and retain the Subservicing Fee in respect of the related Mortgage Loans.
References in this Agreement to actions taken or to be taken by the Company
in
servicing the Mortgage Loans include actions taken or to be taken by a
Subservicer on behalf of the Company. Each Subservicing Agreement will be
upon
such terms and conditions as are required or permitted by the Program Guide
and
are not inconsistent with this Agreement. Any Subservicing Agreement shall
be
deemed to be between the Subservicer and the Company alone and the Owner
shall
not be deemed a party thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to the Subservicer in its capacity as
such
except as hereinafter set forth in this Section 3.02.
The
Company further is authorized and empowered by the Owner, in its own name
or in
the name of the Subservicer, when the Company believes it appropriate in
its
best judgment to register any Mortgage Loan on the MERS® System, or cause the
removal from the registration of any Mortgage Loan on the MERS® System, to
execute and deliver, on behalf of the Owner any and all instruments of
assignment and other comparable instruments with respect to such assignment
or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Owner
and its successors and assigns. The cost of any such registration, removal,
assignment or re-recording shall be paid by the Owner.
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The
Company shall be entitled to terminate any Subservicing Agreement that may
exist
and the rights and obligations of any Subservicer pursuant to any Subservicing
Agreement in accordance with the terms and conditions of such Subservicing
Agreement and without any limitation by virtue of this Agreement; provided,
however,
that in
the event of termination of any Subservicing Agreement by the Company or
the
Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Company, and the Company shall either act as servicer
of
the related Mortgage Loan or enter into a Subservicing Agreement with a
successor Subservicer which will be bound by the terms of the related
Subservicing Agreement.
The
Company shall remain obligated and primarily liable to the Owner for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the
same
terms and conditions as if the Company alone were servicing and administering
the Mortgage Loans.
Notwithstanding
anything to the contrary, the Company shall not hire or otherwise utilize
a
subservicer hereunder unless it has provided prior written notice to the
Owner
and its designee. Any subservicer must agree in writing to comply with Sections
3.14, 3.18 and 3.20 and to provide such information relating to such subservicer
as the Owner or its designee may request from time to time in order to permit
the Owner or its designee to comply with Regulation AB in connection with
any
Securitization Transfer.
In
the
event the Company shall for any reason no longer be the master servicer of
the
Mortgage Loans hereunder, the Successor Servicer appointed pursuant to Section
8.01, if any, or the Owner, as the case may be, shall thereupon assume all
of
the rights and obligations of the Company under each Subservicing Agreement
that
may have been entered into, unless the Subservicer or Owner is then permitted
and elects to terminate any Subservicing Agreement in accordance with its
terms.
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Section
3.03 Collection
of Certain Mortgage Loan Payments and Liquidation of Mortgage
Loans.
The
Company shall make reasonable efforts to collect all payments called for
under
the terms and provisions of the Mortgage Loans. Consistent with the foregoing,
the Company may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of
a
Mortgage Loan and (ii) only upon determining that the coverage of such Mortgage
Loan by the related mortgage insurance policy if any, will not be affected,
extend the Due Dates for the Monthly Payments due on a Mortgage Note in
accordance with the Program Guide.
Section
3.04 Principal
and Interest Accounts.
In
those cases where a Subservicer is servicing a Mortgage Loan pursuant to
a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more principal and interest accounts in accordance with the
Program Guide. The Subservicer will generally be required to deposit into
such
accounts all proceeds of Mortgage Loans received by the Subservicer, less
its
servicing compensation, and remit such amounts to the Company as described
in
the Subservicing Agreement.
Section
3.05 Escrow
Accounts.
In
addition to the principal and interest account described in Section 3.04,
the
Company shall cause each Subservicer pursuant to the related Subservicing
Agreement to establish and maintain one or more escrow accounts for the benefit
of the Company and deposit and retain therein all collections from the
Mortgagors for the payment of taxes, assessments, hazard insurance premiums,
mortgage insurance policy premiums, if applicable, and comparable items for
the
account of the Mortgagors.
Section
3.06 Custodial
Account.
The
Company shall establish and maintain one or more Custodial Accounts, which
may
be interest bearing accounts. A Custodial Account may contain funds which
do not
belong to the Owner. Except as otherwise set forth below, the following payments
and collections shall be deposited therein (other than in respect of principal
and interest on the Mortgage Loans due on or before the Cut-off Date): (i)
all
payments on account of principal on the Mortgage Loans; (ii) all payments
on
account of interest on the Mortgage Loans, net of the Subservicing Fee or
any
portion of the Servicing Fee payable to the Subservicer; (iii) all Insurance
Proceeds and Liquidation Proceeds; (iv) any Monthly Advances; (v) all proceeds
of any Mortgage Loan repurchased pursuant to Sections 2.01(c), 2.02, 2.04
and
clause (iii) of Section 7.01; (vi) any amounts required to be deposited pursuant
to the first paragraph of Section 3.08 and (vii) any amounts received by
the
Company in respect of Pledged Assets.
With
respect to Liquidation Proceeds, Insurance Proceeds and the proceeds of the
purchase of any Mortgage Loan pursuant to Sections 2.01(c), 2.02 and 2.04
received in any calendar month, the Company may elect to treat such amounts
as
included in the Principal Remittance Amount for the Remittance Date in the
month
of receipt, but is not obligated to do so. If the Company so elects, such
amounts will be deemed to have been received on the last day of the month
prior
to the receipt thereof.
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Section
3.07 Permitted
Withdrawals From the Custodial Account.
The
Company may, from time to time as provided herein, make withdrawals from
the
Custodial Account for the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in Section
4.01;
(ii) to
reimburse itself for Monthly Advances, the Company’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late payments of principal and/or interest
respecting which any such advance was made;
(iii) to
reimburse itself as to any Liquidated Mortgage Loan from related Liquidation
Proceeds for related Monthly Advances, Insured Expenses and Liquidation
Expenses, and to reimburse itself for any unpaid servicing compensation on
such
Liquidated Mortgage Loan;
(iv) to
reimburse itself as to any Mortgage Loan which became an REO Property, from
related Liquidation Proceeds for related Insured Expenses and Liquidation
Expenses;
(v) (a)
to
pay to itself as servicing compensation any interest in respect of Partial
Prepayments and any interest earned on or investment income with respect
to
funds in the Custodial Account and (b) to pay to itself as to each Mortgage
Loan
the Servicing Fee, and to the related Subservicer the Subservicing
Fee;
(vi) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Sections 2.01(c), 2.02 and 2.04 all amounts received thereon and not required
to
be distributed to the Owner;
(vii) to
reimburse itself for any Nonrecoverable Monthly Advance or to reimburse itself
for any Liquidation Expenses not previously recovered pursuant to subclauses
(iii) and (iv) above;
(viii) to
reimburse itself for expenses incurred by and reimbursable to it pursuant
to
Section 5.01;
(ix) to
reimburse itself for any other expenses incurred and reimbursable to it pursuant
to Section 3.12 or otherwise; and
(x) to
clear
the Custodial Account of all amounts on deposit therein attributable to the
Mortgage Loans upon the termination of this Agreement.
Section
3.08 Permitted
Instruments.
The
depository institution at which the Custodial Account has been established
may
at the direction of the Company, invest the funds in the Custodial Account
in
Permitted Instruments, which shall mature not later than the Remittance Date
next following the date of such investment. Subject to Section 3.16, all
income
and gain realized from any such investment shall be for the benefit of the
Company and shall be subject to its withdrawal or order from time to time.
The
amount of any losses incurred in respect of any such investments shall be
deposited in the Custodial Account by the Company out of its own funds
immediately as such losses are realized. As used herein, Permitted Instruments
shall include the following:
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(i) obligations
of, or obligations fully guaranteed as to principal and interest by, the
United
States or any agency or instrumentality thereof, provided such obligations
are
backed by the full faith and credit of the United States;
(ii) repurchase
obligations with respect to any security described in clause (i) above maturing
not more than one month from the date of acquisition thereof, provided that
the
unsecured obligations of the party agreeing to repurchase such obligations
are
at the time rated by any nationally recognized rating agency in its highest
short-term rating available;
(iii) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than
90 days
and, in the case of bankers’ acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust company;
provided that the debt obligations of such depository institution or trust
company (or, in the case of the principal depository institution in a depository
institution holding company system, debt obligations of the depository
institution holding company) at the date of acquisition thereof have been
rated
by any nationally recognized rating agency in its highest short-term rating
available; and provided further that, if the depository or trust company
is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that
of the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign bank or trust
company shall exceed 30 days, the short-term rating of such institution shall
be
rated by any nationally recognized rating agency in its highest short-term
rating available;
(iv) commercial
paper and demand notes (having original maturities of not more than 365 days)
of
any corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition has a remaining maturity of not
more
than 30 days and has been rated by any nationally recognized rating agency
in
its highest short-term rating available;
(v) a
money
market fund or a qualified investment fund rated by any nationally recognized
rating agency in its highest short-term rating available; and
(vi) other
obligations or securities that are acceptable to any nationally recognized
rating agency as a Permitted Instrument, as evidenced in writing.
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provided,
however,
no
instrument shall be a Permitted Investment if it represents, either (1) the
right to receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive 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
greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor’s and Fitch and
Aaa in the case of Moody’s, and references herein to the highest rating
available on unsecured commercial paper and short-term debt obligations shall
mean A-1 in the case of Standard & Poor’s, P-1 in the case of Moody’s and
either A-1 by Standard & Poor’s, P-1 by Moody’s or F-1 by Fitch in the case
of Fitch.
Section
3.09 Primary
Insurance Policies.
The
Company shall not take any action which would result in non-coverage under
any
applicable mortgage insurance policy or any loss which, but for the actions
of
the Company, would have been covered thereunder. To the extent coverage is
in
full force and effect on the Mortgage Loans as of the Cut-off Date, the Company
shall use reasonable efforts to keep or cause to be kept in full force and
effect each such mortgage insurance policy until the principal balance of
the
related Mortgage Loan is reduced to 80% or less of the Appraised Value in
the
case of such a Mortgage Loan having a Loan-to-Value Ratio at origination
in
excess of 80%. The Company shall pay or use reasonable efforts to cause the
premium for each mortgage insurance policy to be paid on a timely
basis.
Section
3.10 Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity Coverage.
(a) The
Company shall use reasonable efforts to cause to be maintained for each Mortgage
Loan and on property acquired upon foreclosure, or deed in lieu of foreclosure,
of any Mortgage Loan, fire insurance with extended coverage and flood insurance
in accordance with the Program Guide. Any amounts applied to the Company
under
any such policies (other than amounts applied to the restoration or repair
of
the related Mortgaged Property or property thus acquired or amounts released
to
the Mortgagor in accordance with the Company’s normal servicing procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 3.07. In the event that the Company shall obtain and maintain a blanket
policy insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in
the
first sentence of this Section 3.10(a), it being understood and agreed that
such
policy may contain a deductible clause, in which case the Company shall,
in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with the first sentence of this Section 3.10(a)
and
there shall have been a loss which would have been covered by such policy,
deposit in the Custodial Account the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Company
agrees to present, on behalf of itself and the Owner, claims under any such
blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The
Company shall obtain and maintain at its own expense and keep in full force
and
effect throughout the term of this Agreement a blanket fidelity bond and
an
errors and omissions insurance policy covering the Company’s officers and
employees and other persons acting on behalf of the Company in connection
with
its activities under this Agreement. The amount of coverage shall be at least
equal to the coverage that would be required by Xxxxxx Xxx or Xxxxxxx Mac
with
respect to the Company if the Company were servicing and administrating the
Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac in addition to other mortgage
loans
being serviced and administered by the Company.
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Section
3.11 Enforcement
of Due-On-Sale Clauses.
(a) When
any Mortgaged Property is conveyed, the Company shall declare such Mortgage
Loan
due and payable and shall enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage in accordance with the Program Guide, to the extent
permitted under applicable law and governmental regulations, but only to
the
extent that such enforcement will not adversely affect or jeopardize coverage
under any insurance policy. Notwithstanding the foregoing:
(i) the
Company shall not be deemed to be in default under this Section 3.11(a) by
reason of any transfer or assumption which the Company is restricted by law
from
preventing; and
(ii) if
the Company determines that it is reasonably likely that any Mortgagor will
bring, or if any Mortgagor does bring, legal action to declare invalid or
otherwise avoid enforcement of a due-on-sale clause contained in any Mortgage
Note or Mortgage, the Company shall not be required to enforce the due-on-sale
clause or to contest such action.
(b) Subject
to the Company’s duty to enforce any due-on-sale clause to the extent set forth
in Section 3.11(a), in any case in which a Mortgaged Property is to be conveyed
to a Person by a Mortgagor, and such Person is to enter into an assumption
or
modification agreement or supplement to the Mortgage Note or Mortgage which
requires the signature of the Owner, or if an instrument of release signed
by
the Owner is required releasing the Mortgagor from liability on the Mortgage
Loan, the Company is authorized, subject to the requirements of the sentence
next following, to execute and deliver, on behalf of the Owner, the assumption
agreement with the Person to whom the Mortgaged Property is to be conveyed
and
such modification agreement or supplement to the Mortgage Note or Mortgage
or
other instruments as are reasonable or necessary to carry out the terms of
the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
The Company shall execute and deliver such documents only if it reasonably
determines that (i) its execution and delivery thereof will not conflict
with or
violate any terms of this Agreement or cause the unpaid balance and interest
on
the Mortgage Loan to be uncollectible in whole or in part, (ii) any required
consents of insurers under any related insurance policies have been obtained
and
(iii) subsequent to the closing of the transaction involving the assumption
or
transfer (A) the Mortgage Loan will continue to be secured by a first mortgage
lien pursuant to the terms of the Mortgage, (B) such transaction will not
adversely affect the coverage under any related Insurance Policies, (C) the
Mortgage Loan will fully amortize over the remaining term thereof, (D) no
material term of the Mortgage Loan (including the interest rate on the Mortgage
Loan) will be altered nor will the term of the Mortgage Loan be changed and
(E)
if the seller/transferor of the Mortgaged Property is to be released from
liability on the Mortgage Loan, such release will not (based on the Company’s or
the Subservicer’s good faith determination) adversely affect the collectability
of the Mortgage Loan. Upon receipt of appropriate instructions from the Company
in accordance with the foregoing, the Custodian shall execute any necessary
instruments for such assumption or substitution of liability as directed
by the
Company. Upon the closing of the transactions contemplated by such documents,
the Company shall cause the originals or true and correct copies of the
assumption agreement, the release (if any), or the modification or supplement
to
the Mortgage Note or Mortgage to be delivered to the Custodian and deposited
with the Mortgage File for such Mortgage Loan. Any fees collected by the
Company
or the related Subservicer for entering into an assumption or substitution
of
liability agreement will be retained by the Company or such Subservicer as
additional servicing compensation. The Company shall notify the Owner, in
writing, of any such assumption, modification, supplement or substitution
of
liability with respect to any Mortgage Loan and the date thereof.
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(c) The
Company or the related Subservicer, as the case may be, shall be entitled
to
approve a request from a Mortgagor for a partial release of the related
Mortgaged Property, the granting of an easement thereon in favor of another
Person, any alteration or demolition of the related Mortgaged Property or
other
similar matters if it has determined, exercising its good faith business
judgment in the same manner as it would if it were the owner of the related
Mortgage Loan, that the security for, and the timely and full collectability
of,
such Mortgage Loan would not be adversely affected thereby. Any fee collected
by
the Company or the related Subservicer for processing such a request will
be
retained by the Company or such Subservicer as additional servicing
compensation.
(d) Subject
to any other applicable terms and conditions of this Agreement, the Custodian
and Company shall be entitled to approve an assignment in lieu of satisfaction
with respect to any Mortgage Loan, provided the obligee with respect to such
Mortgage Loan following such proposed assignment provides the Custodian and
Company with a “Certification” in the form attached hereto as Exhibit F, in form
and substance satisfactory to the Custodian and Company, providing the
following: (i) that the Mortgage Loan is secured by Mortgaged Property located
in a jurisdiction in which an assignment in lieu of satisfaction is required
to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) that the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and that the form of the transaction is
solely
to comply with, or facilitate the transaction under, such local laws; (iii)
that
the Mortgage Loan following the proposed assignment will have a rate of interest
at least 0.25 percent below or above the rate of interest on such Mortgage
Loan
prior to such proposed assignment and (iv) that such assignment is at the
request of the borrower under the related Mortgage Loan, upon approval of
such
assignment in lieu of satisfaction with respect to any Mortgage Loan, the
Company shall receive cash in an amount equal to the unpaid principal balance
of
and accrued interest on such Mortgage Loan and the Company shall treat such
amount as a Full Prepayment with respect to such Mortgage Loan for all purposes
hereof.
Section
3.12 Realization
Upon Defaulted Mortgage Loans.
(a) The Company shall foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into
and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 3.03. In connection
with
such foreclosure or other conversion, the Company shall, consistent with
this
Agreement, follow such practices and procedures as it shall deem necessary
or
advisable and as shall be normal and usual in its general mortgage servicing
activities; provided that the Company shall not be liable in any respect
hereunder if the Company is acting in a manner that is consistent with the
provisions of this Agreement and the Custodial Agreement. The foregoing is
subject to the proviso that the Company shall not be required to expend its
own
funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to the Owner
after reimbursement to itself for such expenses and (ii) that such expenses
will
be recoverable to it through Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.07. In the event of a determination
by
the Company pursuant to this Section 3.12(a), the Company shall be entitled
to
reimbursement of its funds so expended pursuant to Section 3.07. The Company
shall be responsible for all other costs and expenses incurred by it in any
such
proceeding; provided,
however,
that it shall be entitled to reimbursement thereof from the related Mortgaged
Property, as contemplated in Section 3.07.
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For
so long as the Company is the Master Servicer under the Credit Support Pledge
Agreement, the Company shall perform its obligations under the Credit Support
Pledge Agreement in accordance with such Agreement and in a manner that is
in
the best interests of the Initial Owner. Further, the Company shall use its
best
reasonable efforts to realize upon any Pledged Assets for such of the Pledged
Asset Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.03; provided that the Company shall not, on behalf of the Initial
Owner, obtain title to any such Pledged Assets as a result of or in lieu
of the
disposition thereof or otherwise; and provided further that (i) the Company
shall not proceed with respect to such Pledged Assets in any manner that
would
impair the ability to recover against the related Mortgaged Property, and
(ii)
the Company shall proceed with any REO Acquisition in a manner that preserves
the ability to apply the proceeds of such Pledged Assets against amounts
owed
under the defaulted Mortgage Loan. Any proceeds realized from such Pledged
Assets (other than amounts to be released to the Mortgagor or the related
guarantor in accordance with procedures that the Company would follow in
servicing loans held for its own account, subject to the terms and conditions
of
the related Mortgage and Mortgage Note and to the terms and conditions of
any
security agreement, guarantee agreement, mortgage or other agreement governing
the disposition of the proceeds of such Pledged Assets) shall be deposited
in
the Custodial Account, subject to withdrawal pursuant to Section 3.07. Any
other
payment received by the Company in respect of such Pledged Assets shall be
deposited in the Custodial Account subject to withdrawal pursuant to Section
3.07.
(a) Any
proceeds collected by the Subservicer and received by the Company with respect
to any Mortgage Loan, including without limitation, Insurance Proceeds,
Liquidation Proceeds or any other proceeds realized with respect to the sale
of
the Mortgage Loan (other than any such amounts relating to REO Property)
shall
be applied as follows: first, to reimburse the Subservicer and the Company
for
all unreimbursed Monthly Advances with respect to such Mortgage Loan and
servicing advances and expenses incurred by the Subservicer and the Company
with
respect to such Mortgage Loan in accordance with the Program Guide and this
Agreement, including without limitation, taxes, assessments and hazard insurance
premiums; second, to pay to the Company any unpaid Servicing Fees and
Subservicing Fees owed with respect to the related Mortgage Loan; third,
to pay
to the Owner an amount equal to accrued and unpaid interest on the Principal
Balance of such Mortgage Loan at the Mortgage Loan Remittance Rate to the
Due
Date prior to the Remittance Date on which such amounts are to be distributed;
fourth, to pay to the Owner an amount equal to the Principal Balance of such
Mortgage Loan; and fifth, to pay to the Company any amounts
remaining.
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Section
3.13 Owner
to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan or upon
the
receipt by the Company of a notification that payment in full will be escrowed
in a manner customary for such purposes, the Company will immediately notify
the
Owner and the Custodian by delivering to the Owner and the Custodian a Request
for Release. Upon receipt of such Request for Release, the Owner shall promptly
cause the Custodian to release the related Mortgage File to the Company.
No
expenses incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to funds attributable to the Mortgage Loans
on
deposit in the Custodial Account.
(a) From
time to time as is appropriate for the servicing or foreclosure of any Mortgage
Loan, the Company will deliver to the Owner and the Custodian a Request for
Release. Upon receipt of such Request for Release, the Owner shall promptly
cause the Custodian to deliver the related Mortgage File, as requested, to
the
Company. The Company shall cause each Mortgage File so released to be returned
to the Custodian when the need therefor by the Company no longer exists,
unless
(i) the Mortgage Loan has been liquidated and the Liquidation Proceeds relating
to the Mortgage Loan have been deposited in the Custodial Account or (ii)
the
Mortgage File or such document has been delivered directly or through a
Subservicer to an attorney, or to a public trustee or other public official
as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially.
Section
3.14 Reports
to the Owner.
(a) The
Company will deliver to the Owner on or before March 15 of each year, beginning
with the first March 15 that occurs at least six (6) months after the Cut-off
Date, a certificate of an officer of the Company stating, as to each signer
thereof, that (i) a review of the activities of the Company during the preceding
calendar year and of performance under agreements similar to this Agreement
has
been made under such officer’s supervision, (ii) to the best of such officer’s
knowledge, based on such review, the Company has fulfilled its obligations
in
all material respects throughout such year, or, if there has been a default
in
the fulfillment in all material respects of any such obligation relating
to this
Agreement, specifying each such default known to such officer and the nature
and
status thereof and (iii) to the best of such officer’s knowledge, each
Subservicer has fulfilled its material obligations under its Subservicing
Agreement in all material respects, or if there has been a material default
in
the fulfillment of such obligations as it relates to the Mortgage Loans,
specifying such default known to such officer and the nature and status
thereof.
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(b) On
or before March 15 of each year, beginning with the first March 15 that occurs
at least six (6) months after the initial Cut-off Date, the Company shall
cause
a firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Owner
to
the effect that such firm has examined certain documents and records relating
to
the servicing of the mortgage loans under various agreements (including this
Agreement) similar one to another and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Audit Program
for
Mortgage Bankers or the Audit Program for Mortgages serviced for Xxxxxxx
Mac,
such servicing has been conducted in compliance with such agreements except
for
such significant exceptions or errors in records that, in the opinion of
such
firm, the Uniform Single Audit Program for Mortgage Bankers or the Audit
Program
for Mortgages serviced for Xxxxxxx Mac requires it to report (the “USAP
Report”). The Company shall use its best efforts to eliminate any such reported
exceptions or errors as promptly as practicable.
(c) If
the Company services mortgage loans included in a Securitization Transfer
registered with the Commission, and the Owner has determined that it must
obtain
from the Company the report described herein in order to comply with its
obligations under Regulation AB, the Owner shall so notify the Company in
writing. On or before March 15th of each year following the calendar year
in
which such notice is received, the Company shall furnish to the Owner a report
by a registered public accounting firm that attests to, and reports on, the
assessment made by the Company pursuant to Subsection 3.20, as required by
Rules 13a-18 and 15d-18 of the Securities Exchange Act and Section 1122(b)
of
Regulation AB, which attestation shall be in accordance with Rule 1-02(a)(3)
and
Rule 2-02(g) of Regulation S-X under the Securities Act and the Securities
Exchange Act; provided, however, that if the USAP Report satisfies these
requirements no separate report shall be required.
Section
3.15 REO
Property.
In the event that title to a Mortgaged Property is acquired in foreclosure
or by
deed in lieu of foreclosure, the deed or certificate of sale to the REO Property
shall be taken in the name of the Owner of the related Mortgage Loan on the
date
(the “Acquisition Date”) on which such Mortgaged Property becomes an REO
Property, or in the name of such other Person or Persons as requested by
the
Owner, provided,
however,
that title to the REO Property shall not be taken in the name of the Company
unless the Company has obtained an Opinion of Counsel satisfactory to it
from an
attorney duly licensed to practice law in the State where the REO Property
is
located to the effect that the Company shall not suffer any adverse tax,
financial, regulatory or licensing consequences as a result of obtaining
record
title to the REO property. The Person or Persons other than the Owner holding
record title to an REO Property shall acknowledge in writing that such title
is
being held as nominee for the Owner.
The
Company by itself or through an affiliate shall manage or cause the Subservicer
to manage the REO Property in accordance with the terms and provisions of
the
Program Guide and in a manner that is consistent with the manner in which
it
would manage its own property, and in a manner that is in the best interests
of
the Owner. Any proceeds collected by the Subservicer after the Acquisition
Date
with respect to the REO Property, including without limitation, insurance,
liquidation or any proceeds realized with respect to the sale or rental of
the
REO Property (collectively, the “Cash Receipts”) shall be promptly applied as
follows: First, to pay the commission of the broker, if any, who introduced
the
purchaser of the REO Property to the Subservicer; Second, to reimburse the
Subservicer and the Company for all unreimbursed Monthly Advances and pre
and
post Acquisition Date cash outlays made by the Subservicer and the Company
(or
such affiliate) with respect to such REO Property in accordance with the
Program
Guide, including without limitation, taxes, assessments and hazard insurance
premiums; and Third, to pay a management fee to the Company in an amount
equal
to the greater of (a) $200 per month for each month which has expired since
the
Acquisition Date, and (b) $1,000. All Cash Receipts remaining thereafter
shall
be distributed to the Owner on the Remittance Date which occurs in the month
following the sale of the REO Property.
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Upon
prior written notice to the Company, the Owner shall have the right, but
not the
obligation, to request the transfer of servicing of any Mortgaged Property
that
becomes an REO property from the Company to the Owner, or as otherwise
designated by the Owner. Such notice shall be provided within 30 days of
the
Mortgaged Property becoming an REO property. All unreimbursed Monthly Advances
and pre and post Acquisition Date cash outlays made by the Subservicer and
the
Company (or any affiliate) with respect to such REO property shall be deducted
from the Remittance Amount, on any subsequent Remittance Date until reimbursed
in full. Such transfer shall occur 10 Business Days after the date of such
written notice or such date as is mutually agreeable to the Company and the
Owner. After the date of such transfer, the Company shall have no further
obligation hereunder to service or remit funds with respect to such REO
Property.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within three years
after
title has been taken to such REO Property, unless (i) a REMIC election has
not
been made with respect to the arrangement under which the Mortgage Loans
and the
REO Property are held, and (ii) the Company determines, and gives an appropriate
notice to the Owner to such effect, that a longer period is necessary for
the
orderly liquidation of such REO Property. If a period longer than three years
is
permitted under the foregoing sentence and is necessary to sell any REO
Property, the Company shall report monthly to the Owner as to the progress
being
made in selling such REO Property.
The
Company and the Owner hereby agree that the Subservicer shall be relieved
of its
obligation, as set forth in the Program Guide, to advance to the Company
on the
18th day of the month following the Acquisition Date uncollected principal
and
net interest with respect to the Mortgage Loan relating to the REO
Property.
Section
3.16 Compensating
Interest.
Notwithstanding any other provisions contained herein, the amount of servicing
compensation that the Company shall be entitled to receive for its activities
hereunder for the period ending on each Remittance Date shall be reduced
(but
not below zero) by an amount equal to Compensating Interest (if any) for
such
Remittance Date. Such reduction shall be applied during such period as follows:
first, to any Servicing Fee or Subservicing Fee to which the Company is entitled
pursuant to Section 3.07, and second, to any income or gain realized from
any
investment of funds held in the Custodial Account to which the Company is
entitled pursuant to Section 3.08. In making such reduction, the Company
(i)
will not withdraw from the Custodial Account any such amount representing
all or
a portion of the Servicing Fee to which it is entitled pursuant to Section
3.07,
and (ii) will not withdraw from the Custodial Account any such amount to
which
it is entitled pursuant to Section 3.08.
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Section
3.17 Filing
Requirements.
In the event that the Mortgage Loans in a Mortgage Pool are transferred by
the
Owner directly or indirectly to a securitization trust (a “Securitization
Trust”), other than pursuant to Section 3.18(a), then, upon request of the Owner
or any other person as specified in the related pooling and servicing agreement
or similar agreement (and except as otherwise specified therein), the Company
shall cause the servicing officer in charge of servicing of the Company to
execute and deliver a certification (the “Backup Certification”) in the form
attached hereto as Exhibit H in connection with such Securitization Trust,
not
later than March 20 of each calendar year following the first fiscal year
of the
Securitization Trust; provided that such Backup Certification shall no longer
be
required if periodic reports under the Securities Exchange Act of 1934 are
no
longer required with respect to the Securitization Trust.
Section
3.18 Reconstitution.
(a) The
Company and the Owner agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Owner’s sole option, the Owner may effect a sale
(each a “Reconstitution”) of some or all of the Mortgage Loans then subject to
this Agreement, without recourse, to:
(i) Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each a “Xxxxxx Mae Transfer”); or
(ii) Xxxxxxx
Mac (a “Xxxxxxx Mac Transfer”); or
(iii) one
or more third party purchasers in a transfer of a pool of mortgage loans
(a
“Whole Loan Transfer”); or
(iv) one
or more trusts or other entities to be formed as part of an issuance of
mortgage-backed securities (a “Securitization Transfer”).
(b) The
Company agrees to execute (i) in connection with any Xxxxxx Xxx Transfer
or
Xxxxxxx Mac Transfer, any and all pool purchase contracts, and/or agreements
reasonably acceptable to the Company among the Owner, the Company, Xxxxxx
Xxx or
Xxxxxxx Mac (as the case may be) and any servicer, (ii) in connection with
a
Whole Loan Transfer, a seller’s warranties and servicing agreement or a
participation and servicing agreement in form and substance reasonably
acceptable to the Company, and (iii) in connection with a Securitization
Transfer, an assignment, assumption and recognition agreement or similar
agreement in form and substance reasonably acceptable to the Company
(collectively the agreements referred to herein are designated, the
“Reconstitution Agreements”); provided, however, that (A) no Reconstitution
Agreement will contain any obligations or agreements on the part of the Company
that are greater than those contained in this Agreement and (B) the Company
shall be under no obligation to execute a pooling and servicing agreement
or any
other form of public document in connection with any such Reconstitution.
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(c) The
Owner shall reimburse the Company for all reasonable out-of-pocket costs
and
expenses incurred in connection with the delivery of any accountant’s comfort
letter requested of the Company by the Owner in connection with any
Securitization Transfer.
(d) With
respect to each Whole Loan Transfer and each Securitization Transfer entered
into by the Owner, the Company agrees (i) to cooperate fully with the Owner
and
any prospective purchaser with respect to all reasonable due diligence
procedures; (ii) to deliver a customary opinion of counsel in form and substance
reasonably satisfactory to the Owner if requested by the Owner; (iii) to
restate
the representations and warranties set forth in Section 2.04(a) and Section
2.04(b)(xliii) of this Agreement as of the Reconstitution Date; (iv) to restate,
with respect to each Mortgage Loan, as of the Closing Date of the purchase
of
such Mortgage Loan by the Initial Owner, the representations and warranties
set
forth in Section 2.04(b) of this Agreement directly to the subsequent Owner;
(v)
to deliver to the Owner and any prospective purchaser within 5 Business Days
after request by Owner or prospective purchaser, the information with respect
to
itself that is required by Item 1110 of Regulation AB or Item 1108(b) and
1108(c) of Regulation AB; and (vi to deliver to the Owner and any prospective
purchaser within 5 Business Days after request by Owner, Static Pool Information
set forth in Item 1105(a)(2) and (3) of Regulation AB with respect to those
mortgage loans that were originated by the Company and are similar to the
Mortgage Loans.
(e) The
Company shall use its reasonable best efforts to execute, deliver and satisfy
all conditions set forth in an indemnification agreement substantially in
the
form of Exhibit I hereto. Any indemnification obligation of the Company under
any such indemnification agreement shall be subject to the Company’s prior
approval of the disclosure for which indemnification will be
provided.
(f) The
Company shall indemnify the Owner, each Affiliate designated by the Owner,
each
Person who controls the Owner or such Affiliate and the Successor Servicer
and
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that each of them may sustain
arising out of or based upon any untrue statement or alleged untrue statement
of
a material fact contained in the information provided by or on behalf of
the
Company regarding the Company, its servicing practices, any originator or
the
Mortgage Loans pursuant to this Section 3.18, the Company’s Static Pool
Information as described above or the Underwriting Guidelines set forth in
any
offering document prepared in connection with any Reconstitution, or any
omission to state a material fact necessary to make the statements included
in
such information not misleading. For purposes of the previous sentence, “Owner”
shall mean the Person then acting as the Owner under this Agreement and any
and
all Persons who previously were “Owners” under this Agreement and “Successor
Servicer” shall mean the Person then acting as the Successor Servicer under this
Agreement and any and all Persons who previously were “Successor Servicers”
under this Agreement.
(g) In
the event the Owner has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date, the Company shall prepare an
assignment of mortgage in blank or to the prospective purchaser or trustee,
as
applicable, from the Company acceptable to the prospective purchaser or trustee,
as applicable, for each Mortgage Loan that is part of the Reconstitution
and
shall pay all preparation and recording costs associated therewith. In
connection with the Reconstitution, the Company shall execute each assignment
of
mortgage, track such Assignments of Mortgage to ensure they have been recorded
and deliver them as required by the prospective purchaser or trustee, as
applicable, upon the Company’s receipt thereof. Additionally, the Company shall
prepare and execute, at the direction of the Owner, any note endorsement
in
connection with any and all seller/servicer agreements.
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(h) All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to this Agreement and with respect thereto this Agreement shall remain
in full force and effect.
Section
3.19 Credit
Risk Advisor.
The
Owner may in its discretion designate an entity to act as credit risk advisor
for the Mortgage Loans; provided that (a) the credit risk advisor shall have
no
control over the servicing activities of the Company under the related pooling
and servicing agreement, (b) the credit risk advisor must execute a
confidentiality agreement and other documentation customarily used by the
Company in connection with similar transactions, in forms acceptable to the
Company in its sole discretion, and (c) the Company shall not be required
to
alter its computer programs or customary servicing practice without the
Company’s consent or to incur any expenses to provide such reports in any manner
that is inconsistent with the Company’s reporting procedures as of the date
hereof, unless the Owner shall reimburse the Company for the costs associated
with such customized reports.
Section
3.20 Assessment
of Servicing Compliance.
If the
Company services mortgage loans included in a Securitization Transfer registered
with the Commission, and the Owner has determined that it must obtain from
the
Company the assessment described herein in order to comply with its obligations
under Regulation AB, the Owner shall so notify the Company in writing. On
or
before March 15th of each year following the date of such notice, beginning
with the March 15th that is at least three months later than the date of
such
notice, the Company shall deliver to the Owner or its designee a report
regarding its assessment of compliance with “Servicing Criteria” as required by,
and described in, Rules 13a-18 and 15d-18 of the Securities Exchange Act
and
Item 1122 of Regulation AB.
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ARTICLE
IV
PAYMENTS
TO THE OWNER
Section
4.01 Distributions.
On each
Remittance Date the Company shall distribute to the Owner of record on the
next
preceding Record Date either in immediately available funds (by wire transfer
or
otherwise), if such amount is in excess of $5,000, to the account of such
Owner
in accordance with the wire instructions set forth in, or provided to the
Company in accordance with, Section 8.04, or otherwise by check mailed to
such
Owner, the Remittance Amount payable to such Owner.
Section
4.02 Statements
to the Owner.
Concurrently with each distribution charged to the Custodial Account, the
Company shall forward by mail to the Owner, and make available to the Owner
via
electronic format, a statement setting forth certain information in respect
of
the Mortgage Loans including:
(i) the
amount, if any, of such distribution allocable to principal and/or
interest;
(ii) the
amount of related servicing compensation received by the Company and the
Subservicer and such other customary information as the Company deems necessary
or desirable to enable the Owner to prepare its tax returns;
(iii) the
number and aggregate Principal Balance of the Mortgage Loans at the close
of
business on such Remittance Date after giving effect to all distributions
allocable to principal made on such Remittance Date, including, for this
purpose, the Principal Balances of all Mortgage Loans purchased pursuant
to
Section 2.02 or 2.04 the proceeds of which are being distributed on such
Remittance Date;
(iv) on
the
basis of the most recent reports furnished to it by the Subservicer, the
number
and aggregate principal balances of Mortgage Loans in each Mortgage Pool
delinquent (a) one month, (b) two or more months, and (c) the number and
aggregate balance of Mortgage Loans that are in foreclosure;
(v) the
number and aggregate balance of REO Properties;
(vi) the
Pass-Through Rate for such Remittance Date; and
(vii) Static
Pool Information.
The
Company may make Static Pool Information available to the Owner through a
website that the Company will update from time to time, rather than including
this information in regular statements to the Owner, provided that the Company
shall deliver such information in electronic or hard copy upon request of
the
Owner. Within a reasonable period of time after the end of each calendar
year,
the Company shall furnish to the Owner a statement containing the information
set forth in clauses (i) and (ii) above aggregated for such calendar year.
Such
obligation of the Company shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Company
pursuant to any requirements of the Code as from time to time in force. The
Company shall promptly notify the Owner of (i) any litigation or governmental
proceedings pending against the Company of the type described in Section
2.04(a)(v) or (ii) any affiliations or relationships that may develop following
a Securitization Transfer registered with the Commission between the Company
and
any of the Persons identified in Item 1119 of Regulation AB.
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Section
4.03 Distribution
Reports; Monthly Advances by the Company.
Prior
to the close of business on the Business Day next succeeding each Determination
Date, the Company shall forward by mail to the Owner, and make available
to the
Owner via electronic format, a statement to the Owner setting forth the amount
to be distributed on the next succeeding Remittance Date on account of principal
of and interest on the Mortgage Loans. Prior to such time as title to a
Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure,
on or before each Remittance Date, the Company shall either (i) deposit in
the
Custodial Account an amount equal to the Monthly Advance, if any, or (ii)
cause
to be made an appropriate entry in the records of the Custodial Account that
funds in such account that are being held for future distribution or withdrawal
or which do not belong to the Owner have been used by the Company in discharge
of any such Monthly Advance or (iii) make advances in the form of any
combination of (i) and (ii) aggregating the amount of such Monthly Advance.
Any
funds being held for future distribution to the Owner and so used shall be
replaced by the Company by deposit in the Custodial Account on any future
Remittance Date to the extent that funds in the Custodial Account relating
to
the Mortgage Loans on such Remittance Date shall be less than payments to
the
Owner required to be made on such date.
Section
4.04 Reports
and Returns to Be Filed by the Company.
The
Company shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
-48-
ARTICLE
V
THE
COMPANY
Section
5.01 Liability
of the Company and Others.
(a) The
Company shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Company
herein.
(b) Neither
the Company, nor any of the directors, officers, employees or agents of the
Company shall be under any liability to any Owner 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 Company or any such person against any breach of
warranties or representations made herein or any liability that would otherwise
be imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Company and any director, officer, employee or agent
of
the Company 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.
(c) The
Company shall indemnify the Owner and the Successor Servicer and hold it
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees (including (without limitation) legal fees incurred
in
connection with the enforcement of the Company’s indemnification obligation
under this Section 5.01) and related costs, judgments, and any other costs,
fees
and expenses that the Owner or the Successor Servicer may sustain arising
out
of, resulting from, caused by, or claimed by a third party to have been caused
by or resulted from (i) any breach of any of Company’s representations,
warranties or covenants set forth in this Agreement or (ii) the failure by
the
Company to perform its duties hereunder or under a Reconstitution Agreement.
The
Company immediately shall notify the Owner if a claim is made by a third
party
with respect to this Agreement or any Reconstitution Agreement or the Mortgage
Loans, assume (with the prior written consent of the Owner) the defense of
any
such claim and pay all expenses in connection therewith, including counsel
fees,
and promptly pay, discharge and satisfy any judgment or decree which may
be
entered against it or the Owner in respect of such claim. The Owner promptly
shall reimburse the Company for all amounts advanced by it pursuant to the
preceding sentence, except when the claim is in any way related to the Company’s
indemnification pursuant to the first sentence of this Section 5.01(c).
(d) The
Owner
shall indemnify and hold harmless the Company and any director, officer,
employee or agent of the Company against any loss, liability or expense incurred
in connection with any audit, controversy or judicial proceeding relating
to a
governmental taxing authority or legal action relating to the servicing of
the
Mortgage Loans under this Agreement, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, or by reason of a material breach by the
Company of any representation or warranty made by it herein.
-49-
(e) The
Company shall not be under any obligation to appear in, prosecute or defend
any
legal action which is not incidental to its duties under this Agreement and
which in its opinion may involve it in any expense or liability; provided,
however, that the Company may in its discretion undertake any such legal
action
relating to the servicing of the Mortgage Loans under this Agreement that
it may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and is in accordance with Accepted Servicing
Practices. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities payable
or reimbursable out of the Custodial Account as provided by Section 3.07
and,
notwithstanding any other provision hereof, distributions pursuant to Section
4.01 shall be reduced accordingly.
(f) For
purposes of this Section 5.01, “Owner” shall mean the Person then acting as the
Owner under this Agreement and any and all Persons who previously were “Owners”
under this Agreement and “Successor Servicer” shall mean the Person then acting
as the Successor Servicer under this Agreement and any and all Persons who
previously were “Successor Servicers” under this Agreement.
Section
5.02 Merger
or Consolidation of the Company.
The
Company will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the State of Delaware, and will 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 Mortgage Loans
and
to perform its duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger or consolidation to which the Company shall be
a
party, or any Person succeeding to the business of the Company, shall be
the
successor of the Company 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.
Section
5.03 Company
Resignation; Assignment of Agreement.
The
Company may assign this Agreement or resign from the obligations and duties
hereby imposed on it upon 60 days prior written notice to the Owner. Upon
the
Company’s resignation, the Owner shall either assume the responsibilities,
duties, rights and obligations of the Company or appoint a Successor Servicer
in
accordance with Section 8.01. No such resignation shall become effective
until a
successor which satisfies the requirements of Section 8.01 and is mutually
acceptable to the Company and the Owner has assumed the Company’s duties
hereunder, unless a determination has been made that the Company’s duties
hereunder are no longer permissible under applicable law.
Section
5.04 Compliance
With REMIC Provisions.
If a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any
action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC 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 Section 860(a)(2) of the Code
and the tax on “contributions” to a REMIC set forth in Section 860(d) of the
Code) unless the Company has received an Opinion of Counsel (at the expense
of
the party seeking to take such an action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of
any
such tax.
-50-
Section
5.05 Right
to Examine Company Records.
The
Owner, or its designee, shall have the right to examine and audit any of
the
related books, records or other information of the Company, whether held
by the
Company or by another on its behalf, 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
notice. The Owner shall pay its own travel expenses and any other costs and
expenses incurred by the Owner and the Company associated with such
examination.
The
Company shall provide to the Owner and any supervisory agents or examiners
which
may relate to the Owner access to any documentation regarding the Mortgage
Loans
which may be required by any applicable regulations, including but not limited
to any disaster recovery/business continuity plan and/or any measures taken
by
the Company to protect Consumer Information. Such access shall be afforded
without charge, upon reasonable request, upon five Business Days prior written
notice, during normal business hours and at the offices of the Company, all
in
accordance with applicable federal government regulations.
-51-
ARTICLE
VI
DEFAULT
Section
6.01 Events
of Default of the Company.
Event
of Default, wherever used herein, means any one of the following
events:
(i) the
Company shall fail to remit to the Owner any payment required to be made
under
the terms of this Agreement and such failure shall continue unremedied for
a
period of 2 days after the date upon which written notice or oral notice
(promptly confirmed in writing) of such failure, requiring such failure to
be
remedied, shall have been given to the Company by the Owner; or
(ii) the
Company shall fail to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Company contained in this
Agreement as it relates to the Owner and such failure shall continue unremedied
for a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company by
the
Owner; provided, however, that no Event of Default shall occur until 60 days
after the date of such notice if the Company is diligently proceeding to
cure
any such failure; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law or appointing a conservator or receiver or liquidator
in any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Company and such decree or order shall
have
remained in force undischarged or unstayed for a period of 30 days; provided,
however, that no Event of Default shall occur until 60 days after the date
of
such notice if the Company is diligently proceeding to discharge or stay
such
decree or order; or
(iv) the
Company 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 Company or of,
or
relating to, all or substantially all of the property of the Company;
or
(v) the
Company shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of, or commence a voluntary
case
under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations.
If
an
Event of Default described in this Section shall occur, then, and in each
and
every such case, so long as such Event of Default shall not have been remedied,
the Owner by notice in writing to the Company, may terminate all of the rights
and obligations of the Company under this Agreement other than its right
to
receive servicing compensation for servicing the Mortgage Loans hereunder
during
any period prior to the date of such termination and may exercise any and
all
other remedies available at law or equity; provided,
however,
that
any liability of the Company under this Agreement arising prior to such
termination shall survive. On or after the receipt by the Company of such
written notice, all authority and power of the Company under this Agreement
shall, in accordance with Section 8.01, pass to and be vested in the Owner
or
the Successor Servicer appointed pursuant to Section 8.01. If the Company
obtains knowledge of an Event of Default, the Company shall promptly notify
the
owner thereof.
-52-
Section
6.02 Waiver
of Defaults.
The
Owner may waive such default by the Company in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default, as
defined
in Section 6.01, 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.
-53-
ARTICLE
VII
TERMINATION
Section
7.01 Termination.
The
obligations and responsibilities of the Company hereunder shall terminate
upon
the earlier of: (i) the later of the final payment or other liquidation (or
any
advance with respect thereto) of the last Mortgage Loan in the Mortgage Pool
and
the remittance of all funds due hereunder, or (ii) by mutual consent of the
Company and the Owner in writing or (iii) the purchase by the Company of
all
Mortgage Loans in the Mortgage Pool and all property acquired in respect
of any
such Mortgage Loan remaining subject to this Agreement at a price equal to
the
aggregate Principal Balance of such Mortgage Loans (including, with respect
to
any such Mortgage Loan as to which title to the underlying Mortgaged Property
has been acquired, the Principal Balance thereof as of the date of such
acquisition), together with interest on such aggregate Principal Balance
at the
then applicable Pass-Through Rate to the first day of the month in which
such
repurchase price is distributed to the Owner.
The
right
of the Company to purchase all the Mortgage Loans in the Mortgage Pool and
any
related Mortgaged Properties pursuant to clause (iii) in the preceding paragraph
is conditioned upon the number of outstanding Mortgage Loans equaling five
(5)
or less at the time of purchase. In addition, the Custodian shall, promptly
following payment of the purchase price, release to the Company the Mortgage
Files pertaining to the Mortgage Loans being purchased.
-54-
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section
8.01 Successor
to the Company.
Any
successor servicer appointed as provided herein (the “Successor Servicer”) shall
have a net worth of not less than $10,000,000 and shall execute, acknowledge
and
deliver to the Company and the Owner an instrument accepting such appointment,
whereupon such Successor Servicer shall succeed to the rights and obligations
of
the Company under the Subservicing Agreements and shall become fully vested
with
all the rights, powers, duties, responsibilities, obligations and liabilities
of
the Company with like effect as if originally named as a party to this
Agreement. The Successor Servicer shall promptly deliver a copy of any such
instrument to the Custodian. In connection with the termination or resignation
of the Company as servicer hereunder, either (i) the Successor Servicer shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of
MERS
in connection with the servicing of the Mortgage Loans that are registered
with
MERS, or (ii) the Company shall cooperate with the Successor Servicer in
causing
MERS to execute and deliver an Assignment of Mortgage in recordable form
to
transfer the Mortgage from MERS to the Owner and to execute and deliver such
other notices, documents and other instruments as may be necessary or desirable
to effect a transfer of such Mortgage Loan or servicing of such Mortgage
Loan on
the MERS® System to the Successor Servicer. The Company shall file or cause to
be filed any such assignment in the appropriate recording office. The Successor
Servicer shall cause such assignment to be delivered to the Custodian promptly
upon receipt of the original with evidence of recording thereon or a copy
certified by the public recording office in which such assignment was
recorded.
Section
8.02 Entire
Agreement; Amendment.
This
Agreement may be amended from time to time by the Company and the Owner by
written agreement signed by the Company and the Owner. This Agreement shall
constitute the entire agreement between the parties.
Section
8.03 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
8.04 Notices.
All
demands and notices hereunder shall be in writing and shall be deemed to
have
been duly given if personally delivered at or mailed by registered mail,
postage
prepaid, or sent by overnight courier to (a) in the case of the Company,
Residential Funding Corporation, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Office of the President, and
Residential Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Servicing Manager and/or such other address
as may
hereafter be furnished to the Owner in writing by the Company, (b) in the
case
of the Initial Owner, Xxxxxxx Xxxxx Mortgage Company, 000 0xx Xxxxxx Xxxxx,
Xxxxx 000X, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx,
or
such other address or addresses as may hereafter be furnished to the Company
in
writing by the Initial Owner, (c) in the case of any Owner other than the
Initial Owner, to such address as may be furnished to the Company in writing
by
such Owner, and (d) in the case of the Custodian, Xxxxx Fargo Bank, N.A.,
0000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Mortgage
Document Custody, or such other address or addresses as may hereafter be
furnished to the Company in writing by the Custodian.
-55-
Distributions
that may be made by wire transfer pursuant to Section 4.01 shall be made
in
accordance with the wire instructions provided in the Reference Agreement
or in
accordance with such other instructions as may hereafter by furnished to
the
Company in writing by the Owner, provided that such instructions have been
received by the Company prior to the Record Date.
Section
8.05 Severability
of Provisions.
If any
provision of this Agreement or the Reference Agreement shall be for any reason
whatsoever held invalid, then such provision shall be deemed severable from
the
remaining provisions of this Agreement and the Reference Agreement and shall
in
no way affect the validity or enforceability of the other provisions of this
Agreement or the Reference Agreement.
Section
8.06 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Company
shall
be rendered as an independent contractor and not as agent for the
Owner.
Section
8.07 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
8.08 Counterparts;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 5.03, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Owner and their
respective successors and assigns.
-56-
IN
WITNESS WHEREOF, the Company and the Initial Owner have caused their names
to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
RESIDENTIAL
FUNDING CORPORATION,
a
Delaware corporation
By:
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Name:
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Title:
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Director
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XXXXXXX
SACHS MORTGAGE COMPANY,
a
New
York limited partnership
By:
XXXXXXX XXXXX REAL ESTATE
FUNDING
CORP.
a
New
York corporation, as General Partner
By:
Name:
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Title:
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EXHIBIT
A
FORM
OF
REFERENCE AGREEMENT
[GOLDMAN
FORM TO BE INSERTED
EXHIBIT
B
FORM
OF
CUSTODIAL AGREEMENT
EXHIBIT
C
FORM
OF
SUBSERVICING AGREEMENT
This
Seller/Servicer Contract (as may be amended, supplemented or otherwise modified
from time to time, this “Contract”) is made this _______ day of _________,
______, by and between Residential Funding Corporation, its successors and
assigns (“Residential Funding”) and __________________________ (the
“Seller/Servicer,” and, together with Residential Funding, the “parties” and
each, individually, a “party”).
WHEREAS,
the Seller/Servicer desires to sell Loans to, and/or service Loans for,
Residential Funding, and Residential Funding desires to purchase Loans from
the
Seller/Servicer and/or have the Seller/Servicer service various of its Loans,
pursuant to the terms of this Contract and the Residential Funding Seller
and
Servicer Guides incorporated herein by reference, as amended, supplemented
or
otherwise modified, from time to time (together, the “Guides”).
NOW,
THEREFORE, in consideration of the premises, and the terms, conditions and
agreements set forth below, the parties agree as follows:
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1.
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Incorporation
of Guides by Reference.
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The
Seller/Servicer acknowledges that it has received and read the Guides. All
provisions of the Guides are incorporated by reference into and made a part
of
this Contract, and shall be binding upon the parties; provided,
however,
that
the Seller/Servicer shall be entitled to sell Loans to and/or service Loans
for
Residential Funding only if and for so long as it shall have been authorized
to
do so by Residential Funding in writing. Specific reference in this Contract
to
particular provisions of the Guides and not to other provisions does not
mean
that those provisions of the Guides not specifically cited in this Contract
are
not applicable. All terms used herein shall have the same meanings as such
terms
have in the Guides, unless the context clearly requires otherwise.
2. Amendments.
This
Contract may not be amended or modified orally, and no provision of this
Contract may be waived or amended except in writing signed by the party against
whom enforcement is sought. Such a written waiver or amendment must expressly
reference this Contract. However, by their terms, the Guides may be amended
or
supplemented by Residential Funding from time to time. Any such amendment(s)
to
the Guides shall be binding upon the parties hereto.
3. Representations
and Warranties.
a. Reciprocal
Representations and Warranties.
The
Seller/Servicer and Residential Funding each represents and warrants to the
other that as of the date of this Contract:
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(a)
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Each
party is duly organized, validly existing, and in good standing
under the
laws of its jurisdiction of organization, is qualified, if necessary,
to
do business and in good standing in each jurisdiction in which
it is
required to be so qualified, and has the requisite power and authority
to
enter into this Contract and all other agreements which are contemplated
by this Contract and to carry out its obligations hereunder and
under the
Guides and under such other
agreements.
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(b)
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This
Contract has been duly authorized, executed and delivered by each
party
and constitutes a valid and legally binding agreement of each party
enforceable in accordance with its
terms.
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(c)
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There
is no action, proceeding or investigation pending or threatened,
and no
basis therefor is known to either party, that could affect the
validity or
prospective validity of this
Contract.
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(d)
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Insofar
as its capacity to carry out any obligation under this Contract
is
concerned, neither party is in violation of any charter, articles
of
incorporation, bylaws, mortgage, indenture, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or regulation
and none
of the foregoing adversely affects its capacity to fulfill any
of its
obligations under this Contract. Its execution of, and performance
pursuant to, this Contract will not result in a violation of any
of the
foregoing.
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b. Seller/Servicer’s
Representations, Warranties and Covenants.
In
addition to the representations, warranties and covenants made by the
Seller/Servicer pursuant to subparagraph (a) of this paragraph 3, the
Seller/Servicer makes the representations, warranties and covenants set forth
in
the Guides and, upon request, agrees to deliver to Residential Funding the
certified Resolution of Board of Directors which authorizes the execution
and
delivery of this Contract.
4. Remedies
of Residential Funding.
If
an
Event of Seller Default or an Event of Servicer Default shall occur, Residential
Funding may, at its option, exercise one or more of those remedies set forth
in
the Guides.
5. Seller/Servicer’s
Status as Independent Contractor.
At
no
time shall the Seller/Servicer represent that it is acting as an agent of
Residential Funding. The Seller/Servicer shall, at all times, act as an
independent contractor.
6. Prior
Agreements Superseded.
This
Contract restates, amends and supersedes any and all prior Seller Contracts
or
Servicer Contracts between the parties except that any subservicing agreement
executed by the Seller/Servicer in connection with any loan-security exchange
transaction shall not be affected.
7. Assignment.
This
Contract may not be assigned or transferred, in whole or in part, by the
Seller/Servicer without the prior written consent of Residential Funding.
Residential Funding may sell, assign, convey, hypothecate, pledge or in any
other way transfer, in whole or in part, without restriction, its rights
under
this Contract and the Guides with respect to any Commitment or
Loan.
8. Notices.
All
notices, requests, demands or other communications that are to be given under
this Contract shall be in writing, addressed to the appropriate parties and
sent
by telefacsimile or by overnight courier or by United States mail, postage
prepaid, to the addresses and telefacsimile numbers specified below. However,
another name, address and/or telefacsimile number may be substituted by the
Seller/Servicer pursuant to the requirements of this paragraph 8, or Residential
Funding pursuant to an amendment to the Guides.
If
to
Residential Funding, notices must be sent to the appropriate address or
telefacsimile number specified in the Guides.
If
to the
Seller/Servicer, notice must be sent to:
Attention:
Telefacsimile
Number: (____) _______ - _______
9. Jurisdiction
and Venue.
Each
of
the parties irrevocably submits to the jurisdiction of any state or federal
court located in Hennepin County, Minnesota, over any action, suit or proceeding
to enforce or defend any right under this Contract or otherwise arising from
any
loan sale or servicing relationship existing in connection with this Contract,
and each of the parties irrevocably agrees that all claims in respect of
any
such action or proceeding may be heard or determined in such state or federal
court. Each of the parties irrevocably waives the defense of an inconvenient
forum to the maintenance of any such action or proceeding and any other
substantive or procedural rights or remedies it may have with respect to
the
maintenance of any such action or proceeding in any such forum. Each of the
parties agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law. Each of the parties further agrees
not
to institute any legal actions or proceedings against the other party or
any
director, officer, employee, attorney, agent or property of the other party,
arising out of or relating to this Contract in any court other than as
hereinabove specified in this paragraph 9.
10. Miscellaneous.
This
Contract, including all documents incorporated by reference herein, constitutes
the entire understanding between the parties hereto and supersedes all other
agreements, covenants, representations, warranties, understandings and
communications between the parties, whether written or oral, with respect
to the
transactions contemplated by this Contract. All paragraph headings contained
herein are for convenience only and shall not be construed as part of this
Contract. Any provision of this Contract that is prohibited or unenforceable
in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction, and, to this end, the provisions hereof are severable.
This
Contract shall be governed by, and construed and enforced in accordance with,
applicable federal laws and the laws of the State of Minnesota.
IN
WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer and
Residential Funding have executed this Seller/Servicer Contract as of the
date
first above written.
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SELLER/SERVICER
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|
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ATTEST:
[Corporate
Seal]
(If
none, so state.)
|
(Name
of Seller/Servicer)
By:
(Signature)
|
|
(Typed
Name)
|
By:
(Typed
Name)
|
|
Title:
|
Title:
|
|
ATTEST:
|
RESIDENTIAL
FUNDING CORPORATION
By:
(Signature)
|
|
(Typed
Name)
|
By:
(Typed
Name)
|
|
Title:
|
Title:
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EXHIBIT
D
RESERVED
EXHIBIT
E
FORM
OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT is dated _______, among ___________
(“Assignor”), ____________ (“Assignee”) and ____________
(“Company”).
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
1. With
respect to the mortgage loans listed in Schedule A hereto (the “Mortgage
Loans”), the Assignor hereby grants, transfers and assigns to the Assignee all
of the right, title and interest of the Assignor, as Owner, in, to and under
that certain Sale and Servicing Agreement, Fixed Rate Mortgage Loans, Series
________ - ________ (the “Servicing Agreement”), dated as of ____________,
_________________ by and between the Company and _________________, the Mortgage
Loans delivered thereunder by the Company to the Assignor and that certain
Custodial Agreement, Series ________ - ________ (the “Custodial Agreement”),
dated as of _______________, ____________, by and among the Company,
__________________________ and Xxxxx Fargo Bank, N.A., as
custodian.
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer such Mortgage Loans, which transfer is made subject to the terms
and
provisions of the Servicing Agreement but free from any other claims and
encumbrances;
b. The
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
Servicing Agreement or the Mortgage Loans;
c. Unless
noted below, the Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Servicing Agreement,
the
Custodial Agreement or the Mortgage Loans, including without limitation the
transfer of the servicing obligations under the Servicing Agreement. The
Assignor has no knowledge of, and has not received notice of, any waivers
under
or amendments or other modifications of, or assignments of rights or obligations
under, the Servicing Agreement, the Custodial Agreement or the Mortgage Loans;
and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged
sold or otherwise disposed of the Mortgage Loans or any interest in the Mortgage
Loans to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans or any interest in the Mortgage Loans from,
or
otherwise approached or negotiated with respect to the Mortgage Loans, any
interest in the Mortgage 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 which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “Securities Act”) or which would
render the disposition of the Mortgage Loans a violation of Section 5 of
the
Securities Act or require registration pursuant thereto.
3. The
Assignee warrants and represents to, and covenants with, the Assignor and
the
Company pursuant to Section 2.03 of the Servicing Agreement that:
a. The
Assignee agrees to be bound, as Owner, by all of the terms, covenants and
conditions of the Servicing Agreement, the Mortgage Loans and the Custodial
Agreement and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor’s
obligations as Owner thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state. The Assignee is acquiring
the Mortgage Loans for investment for its own account only and not with a
view
to or for sale or other transfer in connection with any distribution of the
Mortgage Loans in any manner that would violate the Securities Act or any
applicable state securities law. The Assignee considers itself a substantial,
sophisticated institutional investor having such knowledge and experience
in
financial and business matters that it is capable of evaluating the merits
and
risks of investment in the Mortgage Loans. The Assignee has been furnished
with
all information regarding the Mortgage Loans that it has requested from the
Assignor or the Company. Neither the Assignee nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans to, or solicited any offer to buy
or
accept a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans from, or otherwise approached or negotiated
with
respect to the Mortgage Loans, any interest in the Mortgage 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, which would
constitute a distribution of the Mortgage Loans under the Securities Act
or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the Securities Act or require registration pursuant thereto, nor will
it
act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans;
c. The
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 a non-exempt prohibited transaction under Section 406 of ERISA
or
Section 4975 of the Code;
d. The
Assignee shall indemnify the Company for any loss or liability incurred by
the
Company arising (i) from any breach of warranty, representation or covenant
of
the Assignee made herein that materially and adversely affects the interests
of
the Company or (ii) by reasons of willful misfeasance, bad faith or negligence
of the Assignee in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder; and
e. The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and the Servicing Agreement is:
[Assignee’s
address]
Attention:
Telephone:
Fax:
Email:
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Servicing Agreement
is:
For
the
account of
ABA#:
A/C#:
A/C
Name:
Taxpayer
ID#:
4. From
and
after the date hereof, the Company shall note the transfer of the Mortgage
Loans
to the Assignee in its books and records and the Company shall recognize
the
Assignee as the owner of the Mortgage Loans. The Company acknowledges that
the
Mortgage Loans may become part of a REMIC and the Company shall service the
Mortgage Loans in accordance with the Servicing Agreement, the terms of which
are incorporated herein by reference, but in no event in a manner that would
(i)
cause any REMIC to fail to qualify as a REMIC or (ii) result in the imposition
of a tax upon any 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). It is
the
intention of the Assignor, the Company and the Assignee that the Servicing
Agreement shall be binding upon and inure to the benefit of the Company and
the
Assignee and their respective successors and assigns.
5. Capitalized
words and phrases used but not otherwise defined in this Assignment and
Assumption Agreement shall have the respective meanings assigned to them
in the
Servicing Agreement.
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be executed by their duly authorized officers as of the date
first
above written.
|
Assignor
|
Assignee
|
|
|
[Name
of Assignor]
|
[Name
of Assignee]
|
|
|
By:
Name:
Title:
|
By:
Name:
Title:
|
|
|
Taxpayer
Identification
No.
|
Taxpayer
Identification
No.
|
|
Company
|
|
|
[Name
of Company]
|
|
|
By:
Name:
Title:
|
Series
2005-[___]
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
EXHIBIT
F
FORM
OF
CERTIFICATION
___________,
______
Residential
Funding Corporation
0000
Xxxxxxxxxx Xxxx Xxxxx
Xxxxx
000
Xxxxxxxxxxx,
Xxxxxxxxx 00000
[Address
of Custodian]
|
Re:
|
Fixed
Rate Mortgage Loans,
|
|
Series
- - Assignment of Mortgage Loan
|
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the assignment by
_________________ (the “Owner”) to (the “Lender”) of (the “Mortgage Loan”)
pursuant to Section 3.11(d) of the Sale and Servicing Agreement (the “Sale and
Servicing Agreement”), dated as of ____________________, among Residential
Funding Corporation, as company (the “Company”) and, ____________________, as
Initial Owner. All terms used herein and not otherwise defined shall have
the
meanings set forth in the Sale and Servicing Agreement. The Lender hereby
certifies, represents and warrants to, and covenants with, the Company and
the
Custodian that:
(i) the
Mortgage Loan is secured by Mortgaged Property located in a jurisdiction
in
which an assignment in lieu of satisfaction is required to preserve lien
priority, minimize or avoid mortgage recording taxes or otherwise comply
with,
or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the
substance of the assignment is, and is intended to be, a refinancing of such
Mortgage Loan and the form of the transaction is solely to comply with, or
facilitate the transaction under, such local laws;
(iii) the
Mortgage Loan following the proposed assignment will be modified to have
a rate
of interest at least 0.25 percent below or above the rate of interest on
such
Mortgage Loan prior to such proposed assignment; and
(iv) such
assignment is at the request of the borrower under the related Mortgage
Loan.
Very
truly yours,
(Lender)
By:
Name:
Title:
EXHIBIT
G
FORM
OF
REQUEST FOR RELEASE
DATE:
TO:
Re: REQUEST
FOR RELEASE OF DOCUMENTS
In
connection with the administration of the pool of Mortgage Loans held by
you for
the referenced pool, we request the release of the Mortgage File described
below.
|
Sale
and Servicing Agreement Dated:
|
|
|
Series
#:
|
|
|
Account
#:
|
|
|
Pool
#:
|
|
|
Loan
#:
|
|
|
MIN#:
|
|
|
Borrower
Name(s):
|
|
|
Reason
for Document Request: (circle one)
|
Mortgage
Loan Prepaid in Full
|
|
Mortgage
Loan Repurchased
|
|
|
Mortgage
Loan in Foreclosure
|
|
“We
hereby certify that all amounts received or to be received in connection
with
such payments which are required to be deposited have been or will be so
deposited as provided in the Sale and Servicing Agreement.”
Residential
Funding Corporation
Authorized
Signature
TO
CUSTODIAN: Please acknowledge this request, and check off documents being
enclosed with a copy of this form. You should retain this form for your files
in
accordance with the terms of the Sale and Servicing Agreement.
Enclosed
Documents: □
Promissory Note
□
Primary
Insurance Policy
□
Mortgage or Deed of Trust
□
Assignment(s) of Mortgage or Deed of Trust
□
Title
Insurance Policy
□
Other:
Name
Date
Title
EXHIBIT
H
FORM
OF
BACK-UP CERTIFICATION
The
undersigned, a ____________ of Residential Funding Corporation (“RFC”), hereby
certifies that:
1.
The
information provided to [______________] during the 20___ calendar year with
respect to the Mortgage Loans serviced by RFC, is accurate and complete in
all
material respects as of the last day of such year.
2.
Based
on my knowledge, all information required to be provided by RFC under the
[applicable agreement] [Program Guide] has been provided as
required.
3.
RFC
has fulfilled its obligations as required by the [applicable agreement] [Program
Guide], except as disclosed in the attached explanation.
4.
RFC
has disclosed to its independent auditor, who issue the independent auditor’s
report on the Uniform Single Attestation Program for Mortgage Bankers for
RFC,
any deficiencies relating to RFC’s compliance with the minimum servicing
standards under the [applicable agreement] [Program Guide].
RESIDENTIAL
FUNDING CORPORATION
By:_____________________________________
Name:
Title:
Date:
EXECUTION
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of June 26, 2006 (“Amendment”),
to
the Standard Terms and Provisions of Sale and Servicing Agreement, dated
as of
September 29, 2005, and as further amended, modified and supplemented from
time
to time (the “Sale
and Servicing Agreement”),
between XXXXXXX XXXXX MORTGAGE COMPANY (the “Initial
Owner”)
and
RESIDENTIAL FUNDING CORPORATION (the “Seller”).
RECITALS
WHEREAS,
the parties hereto have entered into the Sale and Servicing
Agreement;
WHEREAS,
the parties hereto desire to modify the Sale and Servicing Agreement as set
forth in this Amendment;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
|
1.
|
Defined
Terms.
Unless otherwise defined herein, terms defined in the Sale and
Servicing
Agreement are used herein as therein
defined.
|
|
2.
|
Amendments.
|
|
(a)
|
The
definition of “Prepayment Period” in Article I of the Sale and Servicing
Agreement is hereby amended by deleting it in its entirety and
replacing
it with the following:
|
|
|
“Prepayment
Period:
As to any Remittance Date and a Full Prepayment, the calendar
month prior
to the month in which that Remittance Date
occurs.”
|
|
(b)
|
The
definition of “Remittance Date” in Article I of the Sale and Servicing
Agreement is hereby amended by deleting it in its entirety and
replacing
it with the following:
|
|
|
“Remittance
Date:
The 18th
day of any month, beginning in the month following the month
in which the
Cut-off Date occurs, or if such 18th
day is not a Business Day, the first Business Day immediately
following.”
|
|
(c)
|
Section
8.03 of the Sale and Servicing Agreement is hereby amended by deleting
it
in its entirety and replacing it with the
following:
|
|
|
“Governing
Law.
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.”
|
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
|
RESIDENTIAL
FUNDING
CORPORATION,
a
Delaware corporation
|
||
| |
|
|
| By: | /s/ | |
|
|
||
|
Name:
Title:
|
||
PURCHASER:
|
XXXXXXX
SACHS MORTGAGE
COMPANY,
a
New York limited
partnership
|
||
| |
|
|
| By: | /s/ | |
|
|
||
|
Name:
Title:
|
||
EXECUTION
COPY
AMENDMENT
NO. 2
to
the
Standard
Terms and Provisions of Sale and Servicing Agreement
dated
as
of September 29, 2005
by
and
between
RESIDENTIAL
FUNDING CORPORATION
and
XXXXXXX
XXXXX MORTGAGE COMPANY
AMENDMENT
NO. 2, dated as of October 6, 2006 (the “Amendment”),
to
the
Standard Terms and Provisions of Sale and Servicing Agreement, dated as of
September 29, 2005,
and as
further amended, modified and supplemented from time to time (the “Sale
and Servicing Agreement”),
between XXXXXXX SACHS MORTGAGE COMPANY (the “Initial
Owner”)
and
Residential Funding Corporation, the predecessor in interest to Residential
Funding Company, LLC (the “Seller”).
RECITALS
WHEREAS,
Seller, pursuant to the laws of the State of Delaware, lawfully converted
from a
corporation to a limited liability company and changed its name from
“Residential Funding Corporation” to “Residential Funding Company LLC,”
effective as of October 6, 2006; and
WHEREAS,
the Initial Owner and Seller each have agreed to execute and deliver this
Amendment on the terms and conditions set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and of the mutual covenants herein contained,
the
parties hereto hereby agree as follows:
SECTION
1. Amendment.
Effective as of October 6, 2006, the Sale and Servicing Agreement is hereby
amended as follows: all references to “Residential Funding Corporation” are
hereby deleted and replaced with “Residential Funding Company LLC”.
|
(a)
|
Section
1.01. The definition of “Company” is hereby amended by deleting it in its
entirety and replacing it with the
following:
|
“Residential
Funding Company, a Delaware limited liability company, or its successor in
interest, or any successor as herein provided.”
|
(b)
|
Section
2.04 (a)(i) is hereby amended by deleting the words “The Company is a
corporation” and replacing it with the following: “The Company is a
limited liability company”.
|
|
(c)
|
The
first paragraph of Section 5.02 is hereby amended by deleting it
in its
entirety and replacing it with the
following:
|
“The
Company will keep in full effect its existence, rights and franchises as
a
limited liability company under the laws of the state of its formation, except
as permitted herein, and will obtain and preserve its qualification to do
business as a foreign limited liability company 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 Company may be merged or consolidated, or any entity
resulting from any merger or consolidation to which the Company shall be
a
party, or any Person succeeding to the business of the Company, shall be
the
successor of the Company 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.”
|
(d)
|
The
signature page is hereby amended by deleting the signature block
“RESIDENTIAL FUNDING CORPORATION, a Delaware corporation” therein in its
entirety and replacing it with “RESIDENTIAL FUNDING COMPANY LLC, a
Delaware limited liability
company”.
|
SECTION
2. Assumption
of Obligations.
The
Seller hereby acknowledges and agrees as of the date hereof that the Seller
shall succeed to and assume any and all of the responsibilities, rights,
duties
and obligations of the Residential Funding Corporation under the Sale and
Servicing Agreement.
SECTION
3. Defined
Terms.
Any
terms capitalized but not otherwise defined herein shall have the respective
meanings set forth in the Sale and Servicing Agreement.
SECTION
4. Limited
Effect.
Except
as amended hereby, the Sale and Servicing Agreement shall continue in full
force
and effect in accordance with its terms. Reference to this Amendment need
not be
made in the Sale and Servicing Agreement or any other instrument or document
executed in connection therewith, or in any certificate, letter or communication
issued or made pursuant to, or with respect to, the Sale and Servicing
Agreement, any reference in any of such items to the Sale and Servicing
Agreement being sufficient to refer to the Sale and Servicing Agreement as
amended hereby. This Amendment shall apply to all Mortgage Loans subject
to the
Sale and Servicing Agreement notwithstanding that any such Mortgage Loans
were
purchased prior to the date of this Amendment.
SECTION
5. Governing
Law.
This
Amendment shall be construed in accordance with the laws of the State of
New
York and the obligations, rights, and remedies of the parties hereunder shall
be
determined in accordance with such laws without regard to conflict of laws
doctrine applied in such state (other than Section 5-1401 or 5-1402 of the
New
York General Obligations Law).
SECTION
6. Counterparts.
This
Amendment may be executed by each of the parties hereto on any number of
separate counterparts, each of which shall be an original and all of which
taken
together shall constitute one and the same instrument.
SECTION
7. Successors.
This
Amendment shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Initial Owner or the Seller may
be
merged or consolidated or which succeeds to the business or assets thereof
shall, without the requirement for any further writing, be deemed the Initial
Owner or the Seller, respectively, hereunder.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
RESIDENTIAL
FUNDING COMPANY
LLC,
a
Delaware limited liability company
By:
____________________________
Name:
Title:
PURCHASER:
XXXXXXX
XXXXX MORTGAGE
COMPANY,
a New York limited partnership
By:____________________________
Name:
Title:
EXECUTION
COPY
AMENDMENT
NO. 3
to
the
Standard
Terms and Provisions of Sale and Servicing Agreement
dated
as
of September 29, 2005
by
and
between
RESIDENTIAL
FUNDING CORPORATION
and
XXXXXXX
XXXXX MORTGAGE COMPANY
AMENDMENT
NO. 3, dated as of December 28, 2006 (the “Amendment”),
to
the
Standard Terms and Provisions of Sale and Servicing Agreement, dated as of
September 29, 2005,
and as
further amended, modified and supplemented from time to time (the “Sale
and Servicing Agreement”),
between XXXXXXX SACHS MORTGAGE COMPANY (the “Initial
Owner”)
and
Residential Funding Company, LLC, formerly known as Residential Funding
Corporation (the “Seller”).
RECITALS
WHEREAS,
Seller and Purchaser desire to modify certain provisions contained in the
Sale
and Servicing Agreement as set forth in this Amendment; and
WHEREAS,
the Initial Owner and Seller each have agreed to execute and deliver this
Amendment on the terms and conditions set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and of the mutual covenants herein contained,
the
parties hereto hereby agree as follows:
SECTION
1. Amendment.
| (a) |
The
definition of Mortgage Loan Schedule in Section 1.01 is hereby amended
by
deleting it in its entirety and replacing it with the
following:
|
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans, with respect to each Mortgage Loan Pool, attached
as
Exhibit
A
to the
related assignment and conveyance agreement, setting forth certain information
with respect to each Mortgage Loan in the related Mortgage Loan Pool, which
must
include at a minimum: (1) the Seller’s Mortgage Loan identifying number; (2) the
Mortgagor’s name; (3) the street address of the Mortgaged Property including the
city, state and zip code; (4) a code indicating whether the Mortgaged Property
is owner-occupied, a second home or investment property; (5) the number and
type
of residential units constituting the Mortgaged Property (i.e. a single family
residence, a 2-4 family residence, a unit in a condominium project or a unit
in
a planned unit development, manufactured housing); (6) the original months
to
maturity or the remaining months to maturity from the related Cut-off Date,
in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on
the
actual amortization schedule; (7) the LTV and CLTV, each at the origination;
(8)
the Mortgage Interest Rate as of the related Cut-off Date; (9) the date on
which
the Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (10) the
stated
maturity date; (11) the amount of the Monthly Payment as of the related Cut-off
Date; (12) the last payment date on which a Monthly Payment was actually
applied
to pay interest and the outstanding principal balance; (13) the original
principal amount of the Mortgage Loan; (14) the principal balance of the
Mortgage Loan as of the close of business on the related Cut-off Date, after
deduction of payments of principal due and collected on or before the related
Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans,
the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect
to
Adjustable Rate Mortgage Loans, the Periodic Rate Cap under the terms of
the
Mortgage Note; (20) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Floor under the terms of the Mortgage Note; (21) the type of Mortgage
Loan
(i.e., Fixed Rate, Adjustable Rate, First Lien, Second Lien); (22) a code
indicating the purpose of the loan (i.e., purchase, rate and term refinance,
equity take-out refinance); (23) a code indicating the documentation style
(i.e.
full, alternative or reduced); (24) the loan credit classification (as described
in the Underwriting Guidelines); (25) whether such Mortgage Loan provides
for a
Prepayment Penalty; (26) the Prepayment Penalty period of such Mortgage Loan,
if
applicable; (27) a description of the Prepayment Penalty, if applicable;
(28)
the Mortgage Interest Rate as of origination; (29) the credit risk score
(FICO
score) at origination; (30) the date of origination; (31) the Mortgage Interest
Rate adjustment period; (32) the Mortgage Interest Rate adjustment percentage;
(33) the Mortgage Interest Rate floor; (34) reserved; (35) reserved; (36)
reserved; (37) reserved; (38) reserved; (39) the Due Date for the first Monthly
Payment; (40) the original Monthly Payment due; (41) with respect to the
related
Mortgagor, the debt-to-income ratio; (42) the Appraised Value of the Mortgaged
Property; (43) the sales price of the Mortgaged Property if the Mortgage
Loan
was originated in connection with the purchase of the Mortgaged Property
;
and
(44)
reserved;
and
(45) the
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
| (b) |
Section
1.01 is hereby amended by adding the following
definitions:
|
Option
ARM Mortgage Loan:
An
adjustable rate Mortgage Loan that gives the related Mortgagor three different
payment options each month, which include: (i) a minimum monthly payment
option,
(ii) an interest-only payment option or (iii) a full principal and interest
option which amortizes
over 30 years or less.
2
| (c) |
Section
2.04 (b) is hereby amended by deleting the word “and” at the end of clause
(lv) and adding the following clause:
|
(lvii)
Option
ARM Mortgage Loans.
With
respect to each Option ARM Mortgage Loan, (a) the Seller (or a servicer on
its
behalf) either did not provide different payment options after a “teaser period”
or, if different payment options were provided, applied each payment received
under the Option ARM Mortgage Loan correctly in accordance with Accepted
Servicing Practices, (b) unless otherwise set forth on the Mortgage Loan
Schedule, the Option ARM Mortgage Loan has no negative amortization as of
the
Closing Date and (c) such Option ARM Mortgage Loans were serviced in accordance
with Accepted Servicing Practices and all histories are set forth on the
Mortgage Loan Schedule that would be required to service the Option ARM Mortgage
Loans after the Closing Date in accordance with Accepted Servicing
Practices;
| (d) |
Section
2.04 (b) is hereby amended by adding the following
clause:
|
(lviii)
Daily
Simple Interest.
No
Mortgage Loan provides for the calculation of interest to be made on a “daily
simple interest” basis; and
| (e) |
Section
2.04 (b) is hereby amended by adding the following
clause:
|
(lvix)
Assumability.
With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents. None of
the
Mortgage Loans that are not Adjustable Rate Mortgage Loans are, by their
terms,
assumable.
SECTION
2. Defined
Terms.
Any
terms capitalized but not otherwise defined herein shall have the respective
meanings set forth in the Sale and Servicing Agreement.
SECTION
3. Limited
Effect.
Except
as amended hereby, the Sale and Servicing Agreement shall continue in full
force
and effect in accordance with its terms. Reference to this Amendment need
not be
made in the Sale and Servicing Agreement or any other instrument or document
executed in connection therewith, or in any certificate, letter or communication
issued or made pursuant to, or with respect to, the Sale and Servicing
Agreement, any reference in any of such items to the Sale and Servicing
Agreement being sufficient to refer to the Sale and Servicing Agreement as
amended hereby. This Amendment shall apply to all Mortgage Loans subject
to the
Sale and Servicing Agreement notwithstanding that any such Mortgage Loans
were
purchased prior to the date of this Amendment.
SECTION
4. Governing
Law.
This
Amendment shall be construed in accordance with the laws of the State of
New
York and the obligations, rights, and remedies of the parties hereunder shall
be
determined in accordance with such laws without regard to conflict of laws
doctrine applied in such state (other than Section 5-1401 or 5-1402 of the
New
York General Obligations Law).
3
SECTION
5. Counterparts.
This
Amendment may be executed by each of the parties hereto on any number of
separate counterparts, each of which shall be an original and all of which
taken
together shall constitute one and the same instrument.
SECTION
6. Successors.
This
Amendment shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Initial Owner or the Seller may
be
merged or consolidated or which succeeds to the business or assets thereof
shall, without the requirement for any further writing, be deemed the Initial
Owner or the Seller, respectively, hereunder.
[SIGNATURE
PAGE TO FOLLOW]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
RESIDENTIAL
FUNDING COMPANY
LLC,
a
Delaware limited liability company
By:
____________________________
Name:
Title:
PURCHASER:
XXXXXXX
XXXXX MORTGAGE COMPANY, a New York limited partnership
|
By:
|
Xxxxxxx
Sachs Real Estate Funding Corp., a New York corporation, its General
Partner
|
By:____________________________
Name:
Title:
EXECUTION
COPY
AMENDMENT
NO. 4
to
the
Standard
Terms and Provisions of Sale and Servicing Agreement
dated
as
of September 29, 2005
by
and
between
RESIDENTIAL
FUNDING COMPANY, LLC
and
XXXXXXX
XXXXX MORTGAGE COMPANY
AMENDMENT
NO. 4, dated as of March 15, 2007 (the “Amendment”),
to
the
Standard Terms and Provisions of Sale and Servicing Agreement, dated as
of
September 29, 2005,
as
amended, modified and supplemented from time to time (the “Sale
and Servicing Agreement”),
between XXXXXXX SACHS MORTGAGE COMPANY (the “Initial
Owner”)
and
Residential Funding Company, LLC, formerly known as Residential Funding
Corporation (the “Seller”).
RECITALS
WHEREAS,
Seller and Purchaser desire to modify the Regulation AB provisions contained
in
the Sale and Servicing Agreement by deleting such provisions and replacing
them
with the Regulation AB Addendum dated as of March 15, 2007 by and between
the
Purchaser and the Seller attached hereto as Exhibit
1
(the
“Regulation AB Addendum”) as set forth in this Amendment; and
WHEREAS,
the Initial Owner and Seller each have agreed to execute and deliver this
Amendment on the terms and conditions set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and of the mutual covenants herein contained,
the
parties hereto hereby agree as follows:
SECTION
1 Defined
Terms.
Any
terms capitalized but not otherwise defined herein shall have the respective
meanings set forth in the Sale and Servicing Agreement.
SECTION
2 Amendment.
|
(a)
|
Section
1.01 is hereby amended by deleting the following
definitions:
|
Regulation
AB:
Regulation AB under the Securities Act and the Securities Exchange Act,
as
amended from time to time.
Securitization
Transfer:
As
defined in Section 3.18.
Static
Pool Information:
Information described in Item 1105(a) of Regulation AB regarding the
Company.
Subservicer:
Any
Person, including any successor, with whom the Company has entered into
a
Subservicing Agreement pursuant to the Program Guide.
|
(b)
|
Section
1.01 is hereby amended by adding the following definition in
its proper
alphabetical order:
|
Regulation
AB Addendum:
The
agreement dated as of March 15, 2007, between the Purchaser and the Seller
attached hereto as Exhibit J, to govern compliance with Regulation AB as
set
forth in Section 8.09 of this Agreement.
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(c)
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Section
2.01 (c) is hereby amended by deleting the word “Transfer” after the word
Securitization and replacing it with the word
“Transaction”.
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(d)
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Section
3.02 paragraph 5 is hereby amended by deleting the words “Sections 3.14,
3.18 and 3.20” and replacing them with the following words: “the
Regulation AB Addendum”.
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(e)
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Section
3.02 paragraph 5 is hereby amended by deleting the word “Transfer” after
the word Securitization and replacing it with the word
“Transaction”.
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(f)
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Section
3.14 is hereby amended by deleting it in its entirety and replacing
it
with “Reserved.”
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(c)
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Section
3.17 is hereby amended by deleting it in its entirety and replacing
it
with “Reserved.”
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(d)
Exhibit
H
to the Sale and Servicing Agreement is hereby deleted in its
entirety.
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(e)
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Section
3.18 (a)(iv) is hereby amended by deleting the word “Transfer” after the
word Securitization and replacing it with the word
“Transaction”.
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(f)
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Section
3.18 (b) is hereby amended by deleting the word “Transfer” after the word
Securitization and replacing it with the word
“Transaction”.
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(g)
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Section
3.18 (c) is hereby amended by deleting the word “Transfer” after the word
Securitization and replacing it with the word
“Transaction”.
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(h)
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Section
3.18 is hereby amended by deleting the following clauses (d)(v)
and
(d)(vi) in their entirety:
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“(v)
to
deliver to the Owner and any prospective purchaser within 5 Business Days
after
request by Owner or prospective purchaser, the information with respect
to
itself that is required by Item 1110 of Regulation AB or Item 1108(b) and
1108(c) of Regulation AB; and (vi) to deliver to the Owner and any prospective
purchaser within 5 Business Days after request by Owner, Static Pool Information
set forth in Item 1105(a)(2) and (3) of Regulation AB with respect to those
mortgage loans that were originated by the Company and are similar to the
Mortgage Loans.”
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(i)
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Section
3.20 is hereby amended by deleting it in its entirety and replacing
it
with “Reserved.”
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2
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(j)
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Section
4.02 is hereby amended by deleting the following clause (vii)
in its
entirety:
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“(b)
Static Pool Information. The Company may make Static Pool Information available
to the Owner through a website that the Company will update from time to
time,
rather than including this information in regular statements to the Owner,
provided that the Company shall deliver such information in electronic
or hard
copy upon request of the Owner. Within a reasonable period of time after
the end
of each calendar year, the Company shall furnish to the Owner a statement
containing the information set forth in clauses (i) and (ii) above aggregated
for such calendar year. Such obligation of the Company shall be deemed
to have
been satisfied to the extent that substantially comparable information
shall be
provided by the Company pursuant to any requirements of the Code as from
time to
time in force. The Company shall promptly notify the Owner of (i) any litigation
or governmental proceedings pending against the Company of the type described
in
Section 2.04(a)(v) or (ii) any affiliations or relationships that may develop
following a Securitization Transfer registered with the Commission between
the
Company and any of the Persons identified in Item 1119 of Regulation
AB.”
(k) Article
VIII is hereby amended by adding the following Section 8.09:
Section
8.09 Compliance
with Regulation AB.
The
Purchaser and the Seller agree to adopt the Regulation AB Addendum attached
hereto as Exhibit
J
to
comply with Regulation AB. In the event of a conflict between this Agreement
and
the Regulation AB Addendum, the terms and conditions of the Regulation
AB
Addendum shall control.
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(l)
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The
Sale and Servicing Agreement is hereby amended by inserting Exhibit
J
in
the form of Exhibit
1
hereto at the end thereto.
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SECTION
3 Limited
Effect.
Except
as amended hereby, the Sale and Servicing Agreement shall continue in full
force
and effect in accordance with its terms. Reference to this Amendment need
not be
made in the Sale and Servicing Agreement or any other instrument or document
executed in connection therewith, or in any certificate, letter or communication
issued or made pursuant to, or with respect to, the Sale and Servicing
Agreement, any reference in any of such items to the Sale and Servicing
Agreement being sufficient to refer to the Sale and Servicing Agreement
as
amended hereby. This Amendment shall apply to all Mortgage Loans subject
to the
Sale and Servicing Agreement notwithstanding that any such Mortgage Loans
were
purchased prior to the date of this Amendment.
SECTION
4 Governing
Law.
This
Amendment shall be construed in accordance with the laws of the State of
New
York and the obligations, rights, and remedies of the parties hereunder
shall be
determined in accordance with such laws without regard to conflict of laws
doctrine applied in such state (other than Section 5-1401 or 5-1402 of
the New
York General Obligations Law).
SECTION
5 Counterparts.
This
Amendment may be executed by each of the parties hereto on any number of
separate counterparts, including by facsimile, each of which shall be an
original and all of which taken together shall constitute one and the same
instrument.
3
SECTION
6 Successors.
This
Amendment shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Initial Owner or the Seller may
be
merged or consolidated or which succeeds to the business or assets thereof
shall, without the requirement for any further writing, be deemed the Initial
Owner or the Seller, respectively, hereunder.
[SIGNATURE
PAGE TO FOLLOW
4
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
RESIDENTIAL
FUNDING COMPANY
LLC,
a
Delaware limited liability company
By:
Name:
Title:
PURCHASER:
XXXXXXX
XXXXX MORTGAGE COMPANY,
a
New
York limited partnership
By: Xxxxxxx
Sachs Real Estate Funding Corp., a New York corporation, its General
Partner
By:
Name:
Title:
EXHIBIT
1
Regulation
AB Addendum
REGULATION
AB COMPLIANCE ADDENDUM
TO
THE STANDARD TERMS AND PROVISIONS OF SALE AND SERVICING
AGREEMENT
(Servicing-retained)
This
Regulation AB Compliance Addendum (this “Reg
AB
Addendum”),
dated
as of March 15, 2007, by and between XXXXXXX XXXXX MORTGAGE COMPANY (the
“Purchaser”)
and
Residential Funding Company, LLC, formerly known as Residential Funding
Corporation (the “Seller”),
to
that certain Standard Terms and Provisions of Sale and Servicing Agreement,
dated as of September 29, 2005, by and between the Seller and the Purchaser
(as
amended, modified or supplemented, the “Agreement”).
WITNESSETH
WHEREAS,
the Seller and the Purchaser have agreed to adopt an addendum to the Agreement
to reflect the intention of the parties to comply with Regulation
AB.
NOW,
THEREFORE, in consideration of the mutual promises and mutual obligations
set
forth herein, the Seller and the Purchaser hereby agree as follows:
ARTICLE
I
DEFINED
TERMS
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Agreement. The following terms shall have the meanings set forth
below,
unless the context clearly indicates otherwise:
Commission
or SEC:
The
United States Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer”, if any,
specified by the Purchaser and identified in the related transaction
documents.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for
sale to
the Seller, in accordance with underwriting guidelines designated by the
Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as
described in clause (i) above and were acquired by the Seller within 180
days
after origination; (iii) either (x) the Designated Guidelines were, at
the time
such Mortgage Loans were originated, used by the Seller in origination
of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans
were underwritten, designated by the Seller on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Seller; and
(iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed
to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
I-1
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.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or transfer of some or all of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller
Information:
As
defined in Section 2.07(a).
Servicer:
As
defined in Section 2.03(c).
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements
of which
as of the date hereof is attached hereto as Exhibit B for convenience of
reference only. In the event of a conflict or inconsistency between the
terms of
Exhibit B and the text of Item 1122(d) of Regulation AB, the text of Item
1122(d) of Regulation AB shall control.
Sponsor:
With
respect to any Securitization Transaction, the Person identified in writing
to
the Seller by the Purchaser as sponsor for such Securitization
Transaction.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
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 Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
I-2
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under the Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
ARTICLE
II
COMPLIANCE
WITH REGULATION AB
Section
2.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Article
II of
the Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations
of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act,
the
Seller acknowledges that investors in privately offered securities may
require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in the Agreement to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
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 Seller 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 Seller shall cooperate fully with the Purchaser
and the Master Servicer to deliver to the Purchaser and the Master Servicer
(including any of their assignees or designees) 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, the Master Servicer or such Depositor
to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer 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.
I-3
The
Purchaser (including any of its assignees or designees) shall cooperate
with the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required
to
comply with Regulation AB.
Section
2.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller hereby represents to the Purchaser, to any Master Servicer and to
any
Depositor, as of the date on which information is first provided to the
Purchaser, any Master Servicer or any Depositor under Section 2.03 that,
except
as disclosed in writing to the Purchaser, such Master Servicer or such
Depositor
prior to such date: (i) the Seller 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
Seller as servicer; (ii) the Seller 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 Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes
to the
Seller’s policies or procedures with respect to the servicing function it will
perform under the Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v)
there
are no changes to the Seller’s financial condition that could have a material
adverse effect on the performance by the Seller of its servicing obligations
under the Agreement or any Reconstitution Agreement; (vi) there are no
legal or
governmental proceedings pending (or governmental proceedings known to
be
contemplated) against the Seller or any Subservicer that are material to
investors in the related Securitization Transaction; (vii) there are no
affiliations, relationships or transactions relating to the Seller or any
Subservicer with respect to any Securitization Transaction and any party
thereto
identified by the related Depositor of a type described in Item 1119 of
Regulation AB; and (viii) each Mortgage Loan was originated by a Qualified
Correspondent.
(b) If
so
requested by the Purchaser, any Master Servicer or any Depositor on any
date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 2.03, the Seller shall,
within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
Section
2.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or cause each Subservicer to provide),
in
writing and in form and substance reasonably satisfactory to the Purchaser
and
such Depositor, the information and materials specified in paragraphs (a),
(b),
(c), (f) and (g) of this Section, provided that the Seller shall not be
required
to provide such information and materials if Regulation AB does not require
such
information and materials and (ii) as promptly as practicable following
notice
to or discovery by the Seller, provide to the Purchaser and any Depositor
(in
writing and in form and substance reasonably satisfactory to the Purchaser
and
such Depositor) the information specified in paragraph (iv) of this
Section.
I-4
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and
(iii) as applicable, each Subservicer, as is requested for the purpose
of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation
AB.
Such information shall include, at a minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material to an analysis of the performance of the
Mortgage Loans, including the originators’ credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage Loans and
such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a
description of any legal or governmental proceedings pending (or governmental
proceedings known to be contemplated) against the Seller and each Subservicer
that would be material to investors in the related Securitization Transaction;
and
(D) a
description of any affiliation or relationship between the Seller and each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Seller by the Purchaser or any Depositor
in
writing in advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the Seller shall provide Static
Pool Information with respect to the mortgage loans (of a similar type
as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent).
Such Static Pool Information shall be prepared by the Seller on the basis
of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. The content of such Static Pool Information may be in
the form
customarily provided by the Seller, and need not be customized for the
Purchaser
or any Depositor. Such Static Pool Information for each vintage origination
year
or prior securitized pool, as applicable, shall be presented in increments
no
less frequently than quarterly over the life of the mortgage loans included
in
the vintage origination year or prior securitized pool. The most recent
periodic
increment must be as of a date no later than 135 days prior to the date
of the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or
other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
I-5
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an
omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information
to the
Purchaser or any Depositor, as applicable, in the same format in which
Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide,
at the
expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to the Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable
to the
Purchaser or Depositor, as applicable pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect
to the
Seller’s originations or purchases, to calendar months commencing January 1,
2006, as the Purchaser or such Depositor shall reasonably request. Such
letters
shall be addressed to and be for the benefit of such parties as the Purchaser
or
such Depositor shall designate, which may include, by way of example, any
Sponsor, any Depositor and any broker dealer acting as underwriter, placement
agent or initial purchaser with respect to a Securitization Transaction.
Any
such statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under the Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the
Servicer
that may be material to any analysis of the servicing of the Mortgage Loans
or
the related asset-backed securities, as applicable, including, without
limitation:
I-6
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential
mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has 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; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under
the
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving
the
Servicer could have a material adverse effect on the performance by the
Seller
of its servicing obligations under the Agreement or any Reconstitution
Agreement;
(E) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type
as the
Mortgage Loans;
(F) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
I-7
(G) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(H) a
description of any legal or governmental proceedings pending (or governmental
proceedings known to be contemplated) against the Servicer that would be
material to investors in the Securitization Transaction; and
(I) a
description of any affiliation or relationship between the Servicer and
any of
the following parties to a Securitization Transaction, as such parties
are
identified to the Servicer by the Purchaser or any Depositor in writing
in
advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(d) For
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, for so long as the Depositor
is
required to file reports under the Exchange Act with respect to a Securitization
Transaction, the Seller shall (or shall cause each Subservicer to) (i)
provide
prompt notice to the Purchaser, any Master Servicer and any Depositor in
writing
of (A) any litigation or governmental proceedings involving the Seller
or any
Subservicer that would be material to investors in the related Securitization
Transaction, (B) any affiliations or relationships of the type required
to be
disclosed under Item 1119 of Regulation AB that develop following the closing
date of a Securitization Transaction between the Seller, any Subservicer
or any
of the parties specified in clause (D) of paragraph (a) of this Section
(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 the
Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into a material agreement after the applicable closing date with a Subservicer
to perform or assist in the performance of any of the Seller’s obligations under
the Agreement or any Reconstitution Agreement and (ii) provide to the Purchaser
and any Depositor a description of such proceedings, affiliations or
relationships.
(e) As
a
condition to the succession to the Seller or any Subservicer as servicer
or
subservicer of at least 10% of the pool assets in a Securitization Transaction
or sub-pool thereof under the Agreement or any Reconstitution Agreement
by any
Person (i) into which the Seller or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Seller
or any
Subservicer, the Seller shall provide to the Purchaser, any Master Servicer
and
any Depositor, at least 15 calendar days prior to the effective date of
such
succession or appointment, (x) written notice to the Purchaser and any
Depositor
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply
with
its reporting obligation under Item 6.02 of Form 8-K with respect to any
class
of asset-backed securities.
I-8
(f) In
addition to such information as the Seller, as servicer, is obligated to
provide
pursuant to other provisions of this Agreement, not later than ten days
prior to
the deadline for the filing of any distribution report on Form 10-D in
respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall, to the extent the Seller or such Suvservicer has knowledge,
provide to the party responsible for filing such report (including, if
applicable, the Master Servicer) notice of the occurrence of any of the
following events 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 (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding any material pool asset changes (such as additions substitutions
or
repurchases) (Item 1121(a)(14) of Regulation AB).
(g) The
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
upon request, evidence of the authorization of the person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, publicly applicable financial
information and reports, and such other information reasonably related
to the
Seller or any Subservicer or the Seller or such Subservicer’s performance
hereunder.
(h) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligations under the Exchange Act pursuant to Item 1111 of Regulation
AB, the Seller shall provide the historical delinquency experience of the
Mortgage Loans sold to the Initial Purchaser since the later of the origination
of such Mortgage Loan or the date that is 12 months prior to the date of
such
request, which historical delinquency experience shall be presented in
a manner
to indicate (a) the longest period of delinquency of the Mortgage Loans
since
the origination of such Mortgage Loans or the date that is 12 months prior
to
the date of such request, and (b) the greatest incidence of delinquency
for each
Mortgage Loan since its origination in groupings of “never delinquent”, 30-,
60-, 90-days etc. (each such grouping, a “Bucket”), which Buckets shall indicate
the aggregate number of Mortgage Loans in such Bucket and the aggregate
principal balance of such Mortgage Loans.
(i) Notwithstanding
anything to the contrary herein, when determining if information is required
under Regulation AB, all threshold and other requirements shall be determined
solely by looking at the Seller’s mortgage loans and those of its third-party
originators. The Seller shall have no obligation with respect to disclosure
or
reporting under Regulation AB in the event that the aggregation of its
third-party originated Mortgage Loans with those of the Purchaser’s other
sellers require additional disclosure; provided, however, the Seller shall
otherwise cooperate with the Purchaser to provide disclosure or reporting
under
Regulation AB in the event that such disclosure or reporting is required
under
Regulation AB and not otherwise available to the Purchaser.
I-9
Section
2.04 Servicer
Compliance Statement.
On
or
before March 15 of each calendar year, commencing in 2008, the Seller shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such Master Servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i)
a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under the 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 Seller has fulfilled all of its obligations under
the
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.
Section
2.05 Report
on Assessment of Compliance and Attestation.
(i) On
or
before March 15 of each calendar year, commencing in 2008, the Seller
shall:
(ii) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form
and
substance reasonably satisfactory to the Purchaser, such Master Servicer
and
such Depositor) regarding the Seller’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 signed by an authorized officer of the Seller,
and
shall address each of the Servicing Criteria specified on Exhibit B hereto
delivered to the Purchaser at the time of any Securitization
Transaction;
(iii) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such Master
Servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller 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;
(iv) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Section 2.06 to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Purchaser, any Master
Servicer
and any Depositor an assessment of compliance and accountants’ attestation as
and when provided in paragraphs (i) and (ii) of this Section; and
I-10
(v) deliver,
and cause each Subservicer and Subcontractor described in clause (iii)
to
provide, to the Purchaser, any Depositor, any 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 Xxxxxxxx-Xxxxx 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 Seller, in the
form
attached hereto as Exhibit A.
The
Seller acknowledges that the parties identified in clause (i)(4) above
may rely
on the certification provided by the Seller pursuant to such clause in
signing a
Sarbanes Certification and filing such with the Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
2.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to
the
Purchaser concurrently with the execution of the 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 2.05 need not address any elements of the Servicing Criteria other
than
those specified by the Seller pursuant to Section 2.06.
Section
2.06 Use
of
Subservicers and Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB to fulfill any of the obligations of the Seller as servicer
under
the Agreement or any Reconstitution Agreement unless the Seller complies
with
the provisions of paragraph (i) of this Section. The Seller shall not hire
or
otherwise utilize the services of any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, and shall
not permit any Subservicer to hire or otherwise utilize the services of
any such
Subcontractor, to fulfill any of the obligations of the Seller as servicer
under
the Agreement or any Reconstitution Agreement unless the Seller complies
with
the provisions of paragraph (ii) of this Section.
(a) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any
Master
Servicer or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer)
for the
benefit of the Purchaser and any Depositor to comply with the provisions
of this
Section and with Sections 2.02, 2.03(c), (e) and (f) 2.04,
2.05 and 2.07 of the Agreement to the same extent as if such Subservicer
were
the Seller, to the extent required under Regulation AB, and to provide
the
information required with respect to such Subservicer under Section 2.03
of the
Agreement. The Seller shall be responsible for obtaining from each Subservicer
and delivering to the Purchaser and any Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 2.04,
any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 2.05 and any certification required to be delivered
to
the Person that will be responsible for signing the Sarbanes Certification
under
Section 2.05 as and when required to be delivered.
I-11
(b) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any
Master
Servicer or any Depositor to the utilization of any Subcontractor. If required
under Regulation AB, the Seller shall promptly upon request provide to
the
Purchaser, any Master Servicer and any Depositor (or any designee of the
Depositor, such as an administrator) a written description (in form and
substance reasonably satisfactory to the Purchaser, such Master Servicer
and
such Depositor) of the role and function of each Subcontractor utilized
by the
Seller or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause
(ii)
of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the
Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 2.05 and 2.07 of the Agreement to
the
same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
and the
other certifications required to be delivered by such Subcontractor under
Section 2.05, in each case as and when required to be delivered.
Section
2.07 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser,
any
Master Servicer and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
(including, but not limited to, any Master Servicer if applicable) responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for
execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker
dealer
acting as underwriter, placement agent or initial purchaser, each Person
who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees, agents and affiliates
of each
of the foregoing and of the Depositor (each, a “Purchaser Indemnified Party”),
and shall hold each of them harmless from and against any claims, losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them
may
sustain arising out of or based upon:
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, data or other material provided in
written
or electronic form under this Article II by or on behalf of the Seller,
or
provided under this Article II by or on behalf of any Subservicer or
Subcontractor (collectively, the “Seller Information”), or (B) the omission or
alleged omission to state in the Seller Information a material fact required
to
be stated in the Seller 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 Seller Information and not
to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any portion
thereof is presented together with or separately from such other
information;
I-12
(ii) any
breach by the Seller of its obligations under this Article II or any failure
by
the Seller, any Subservicer or any Subcontractor to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Article II, including any failure by the Seller to
identify
pursuant to Section 2.06 any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB;
(iii) any
breach by the Seller of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(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
Seller of a representation or warranty in a writing furnished pursuant
to
Section 2.02(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 Seller in connection
with its
performance under this Article II;
provided,
however, that the Seller shall not be liable for any consequential or punitive
damages whatsoever, whether in contract, tort (including negligence and
strict
liability), or any other legal or equitable principle unless (A) such damages
are payable with respect to third party claims made against the Purchaser
or (B)
such damages arise due to a failure by the Seller to deliver a certification
required under Item 1123 of Regulation AB and the Purchaser has used its
best
efforts to mitigate such damages, including seeking any necessary waivers
from
the Commission on a timely basis.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Purchaser Indemnified Party, then the Seller agrees that it
shall
contribute to the amount paid or payable by such Purchaser Indemnified
Party as
a result of any claims, losses, damages or liabilities incurred by such
Purchaser Indemnified Party in such proportion as is appropriate to reflect
the
relative fault of such Purchaser Indemnified Party on the one hand and
the
Seller on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this
Section,
the Seller shall promptly reimburse the Purchaser, any 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 such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization 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 Seller, any Subservicer
or
any Subcontractor.
I-13
This
indemnification shall survive the termination of the Agreement or the
termination of any party to the Agreement.
(b) (i) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver
any
information, report, certification, accountants’ letter or other material when
and as required under this Article II, or any breach by the Seller of a
representation or warranty set forth in Section 2.02(a) or in a writing
furnished pursuant to Section 2.02(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 Seller of a
representation or warranty in a writing furnished pursuant to Section 2.02(b)
to
the extent made as of a date subsequent to such closing date, shall, except
as
provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Seller under the Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser, Master Servicer or Depositor, as applicable,
in its
sole discretion to terminate the rights and obligations of the Seller as
servicer under the Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in the Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Seller
(and
if the Seller 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 the Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect. Neither the Purchaser, any Master Servicer nor any
Depositor shall be entitled to terminate the rights and obligations of
the
Seller pursuant to this subparagraph (b)(i) if a failure of the Seller
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.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 2.04 or 2.05, including any failure by the Seller to identify
pursuant to Section 2.06 any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, shall constitute an
Event of Default with respect to the Seller under the 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 Seller as servicer under the Agreement
and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in the Agreement to the contrary) of any compensation to the Seller;
provided
that to
the extent that any provision of the Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a 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 Seller 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 the 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.
I-14
Section
2.08 Third
Party Beneficiary.
For
purposes of this Article II and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of the Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
the Agreement.
[signatures
follow]
I-15
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
RESIDENTIAL
FUNDING COMPANY
LLC,
a
Delaware limited liability company
By:
Name:
Title:
PURCHASER:
XXXXXXX
XXXXX MORTGAGE COMPANY,
a
New
York limited partnership
|
By:
|
Xxxxxxx
Sachs Real Estate Funding
Corp.,
a New York corporation, its
General
Partner
|
By:
Name:
Title:
I-16
EXHIBIT
A
FORM
OF
ANNUAL CERTIFICATION
I,
the
_______________________ of [NAME OF SELLER] 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:
(i) I
have
reviewed the servicer compliance statement of the Seller provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Seller’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB and identified as the responsibility of the
Seller
or Exhibit B to the Regulation AB Compliance Addendum to the Agreement
(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 Seller
during
200[ ] that were delivered by the Seller to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement (collectively,
the “Seller Servicing Information”);
(ii) Based
on
my knowledge, the Seller 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 Seller Servicing Information;
(iii) Based
on
my knowledge, all of the Seller Servicing Information required to be provided
by
the Seller under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(iv) I
am
responsible for reviewing the activities performed by the Seller 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
Seller has fulfilled its obligations under the Agreement in all material
respects; and
(v) The
Compliance Statement required to be delivered by the Seller pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Seller and by any Subservicer or 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.
I-A-1
[SELLER]
(Seller)
By:
Name:
Title:
Date:
I-A-2
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Seller] [Name of Subservicer]
shall address, at a minimum, the criteria identified below as “Applicable
Servicing Criteria”;
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
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)(i)
|
||
|
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
|
I-B-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
|
Reference
|
Criteria
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial
institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction
agreements;
(C) reviewed and approved by someone other than the person who
prepared
the reconciliation; and (D) contain explanations for reconciling
items.
These reconciling items are resolved within 90 calendar days
of their
original identification, or such other number of
days
specified in the transaction agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of 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
|
|
I-B-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
|
Reference
|
Criteria
|
||
|
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
|
|
I-B-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
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
|
|
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.
|
|
I-B-4
[SERVICER]
[NAME
OF
SUBSERVICER]
Date:
By:
Name:
Title:
I-B-5
