BANK OF AMERICA, NATIONAL ASSOCIATION Purchaser, CHASE HOME FINANCE LLC, Seller and Servicer MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT Dated as of January 1, 2005 Whole Loan Series 2005 WL-B
BANK
OF
AMERICA, NATIONAL ASSOCIATION
Purchaser,
CHASE
HOME
FINANCE LLC,
Seller
and Servicer
MORTGAGE
LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
Dated
as
of January
1,
2005
Whole
Loan Series 2005
WL-B
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Defined
Terms.
|
1
|
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF
MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
Section
2.01.
|
Agreement
to Purchase.
|
12
|
|
Section
2.02.
|
Purchase
Price.
|
12
|
|
Section
2.03.
|
Servicing
of Mortgage Loans.
|
13
|
|
Section
2.04.
|
Record
Title and Possession of Mortgage Files; Maintenance
of Servicing Files.
|
13
|
|
Section
2.05.
|
Books
and Records.
|
14
|
|
Section
2.06.
|
Transfer
of Mortgage Loans.
|
15
|
|
Section
2.07.
|
Delivery
of Mortgage Loan Documents.
|
15
|
|
Section
2.08.
|
Quality
Control Procedures.
|
17
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE;
REVIEW
OF MORTGAGE LOANS
|
Section
3.01.
|
Representations
and Warranties of the Seller.
|
17
|
|
Section
3.02.
|
Representations
and Warranties as to Individual Mortgage Loans.
|
19
|
|
Section
3.03.
|
Repurchase;
Substitution.
|
29
|
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
Section
4.01.
|
Seller
to Act as Servicer.
|
31
|
|
Section
4.02.
|
Collection
of Mortgage Loan Payments.
|
34
|
|
Section
4.03.
|
Realization
Upon Defaulted Mortgage Loans.
|
34
|
|
Section
4.04.
|
Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
|
35
|
|
Section
4.05.
|
Permitted
Withdrawals From the Custodial Account.
|
36
|
|
Section
4.06.
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
|
37
|
|
Section
4.07.
|
Permitted
Withdrawals From Escrow Account.
|
38
|
|
Section
4.08.
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of
Primary Mortgage Insurance Policies; Collections
Thereunder.
|
39
|
|
Section
4.09.
|
Transfer
of Accounts.
|
40
|
|
Section
4.10.
|
Maintenance
of Hazard Insurance.
|
40
|
i
|
Section
4.11.
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
41
|
|
Section
4.12.
|
Fidelity
Bond, Errors and Omissions Insurance.
|
41
|
|
Section
4.13.
|
Title,
Management and Disposition of REO Property.
|
42
|
|
Section
4.14.
|
Notification
of Maturity Date.
|
44
|
|
Section
4.15.
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
44
|
|
Section
4.16.
|
Inspections.
|
44
|
|
Section
4.17.
|
Restoration
of Mortgaged Property.
|
44
|
|
Section
4.18.
|
Security
Measures/Compliance with Safeguarding Customer Information
Requirements.
|
45
|
|
Section
4.19.
|
Disaster
Recovery/Business Continuity Plan.
|
45
|
|
Section
4.20.
|
Privacy/Confidential
Information.
|
45
|
ARTICLE
V
PAYMENTS
TO THE PURCHASER
|
Section
5.01.
|
Distributions.
|
46
|
|
Section
5.02.
|
Statements
to the Purchaser.
|
47
|
|
Section
5.03.
|
Monthly
Advances by the Seller.
|
47
|
|
Section
5.04.
|
Liquidation
Reports.
|
48
|
|
Section
5.05.
|
Automated
Servicing Systems.
|
48
|
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01.
|
Assumption
Agreements.
|
48
|
|
Section
6.02.
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
49
|
|
Section
6.03.
|
Servicing
Compensation.
|
50
|
|
Section
6.04.
|
Annual
Statement as to Compliance.
|
50
|
|
Section
6.05.
|
Annual
Independent Certified Public Accountants’ Servicing
Report.
|
51
|
|
Section
6.06.
|
Purchaser’s
Right to Examine Seller Records.
|
52
|
|
Section
6.07.
|
Compliance
with REMIC Provisions.
|
52
|
ARTICLE
VII
SELLER
TO COOPERATE
|
Section
7.01.
|
Seller
Shall Provide Information as Reasonably Required.
|
52
|
|
Section
7.02.
|
Cooperation
with Third-party Service Providers.
|
53
|
ARTICLE
VIII
THE
SELLER
|
Section
8.01.
|
Indemnification;
Third Party Claims.
|
54
|
|
Section
8.02.
|
Merger
or Consolidation of the Seller.
|
54
|
|
Section
8.03.
|
Limitation
on Liability of the Seller and Others.
|
55
|
ii
|
Section
8.04.
|
Seller
Not to Assign or Resign.
|
55
|
|
Section
8.05.
|
No
Transfer of Servicing.
|
55
|
ARTICLE
IX
DEFAULT
|
Section
9.01.
|
Events
of Default.
|
56
|
|
Section
9.02.
|
Waiver
of Defaults.
|
57
|
ARTICLE
X
TERMINATION
|
Section
10.01.
|
Termination.
|
58
|
|
Section
10.02.
|
Termination
Without Cause.
|
58
|
ARTICLE
XI
RECONSTITUTION
OF MORTGAGE LOANS
|
Section
11.01.
|
Reconstitution
of Mortgage Loans.
|
58
|
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01.
|
Successor
to the Seller.
|
60
|
|
Section
12.02.
|
Amendment.
|
61
|
|
Section
12.03.
|
Recordation
of Agreement.
|
61
|
|
Section
12.04.
|
Governing
Law.
|
61
|
|
Section
12.05.
|
Notices.
|
61
|
|
Section
12.06.
|
Severability
of Provisions.
|
62
|
|
Section
12.07.
|
Exhibits.
|
62
|
|
Section
12.08.
|
General
Interpretive Principles.
|
63
|
|
Section
12.09.
|
Reproduction
of Documents.
|
63
|
|
Section
12.10.
|
Confidentiality
of Information.
|
63
|
|
Section
12.11.
|
Recordation
of Assignments of Mortgage.
|
64
|
|
Section
12.12.
|
Assignment
by Purchaser.
|
64
|
|
Section
12.13.
|
No
Partnership.
|
64
|
|
Section
12.14.
|
Execution;
Successors and Assigns.
|
65
|
|
Section
12.15.
|
Entire
Agreement.
|
65
|
|
Section
12.16.
|
No
Solicitation.
|
65
|
|
Section
12.17.
|
Further
Agreements.
|
65
|
|
Section
12.18.
|
Closing.
|
65
|
|
Section
12.19.
|
Costs.
|
66
|
iii
EXHIBITS
| A |
Contents
of Mortgage File
|
| B |
Custodial
Account Letter Agreement
|
| C |
Escrow
Account Letter Agreement
|
| D |
Form
of Assignment and Assumption
|
| E |
Pool
Statistics
|
| F |
Mortgage
Loan Schedule
|
| G |
Request
for Release of Documents and
Receipt
|
| H |
Form
of SEC Certification
|
| I |
Monthly
Remittance Advice
|
| J |
Servicer
Requirements
|
SCHEDULES
| A |
Purchase
Price and Terms Letter dated as of December
2,
2004
|
iv
This
is a
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of
January
1,
2005,
and is
executed between Bank of America, National Association, as Purchaser (the
“Purchaser”), and Chase Home
Finance LLC
(the
“Seller”), as seller and servicer.
W
I T N E
S S E T H:
WHEREAS,
the Purchaser has heretofore agreed to purchase from the Seller and the Seller
has heretofore agreed to sell to the Purchaser certain Mortgage Loans, exclusive
of the servicing rights associated with such Mortgage Loans, pursuant to the
terms of a letter agreement dated as of December
2,
2004, by
and between the Seller and the Purchaser (the “Purchase Price and Terms
Letter”).
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule, which is annexed
hereto as Exhibit F; and
WHEREAS,
the Purchaser and the Seller wish to prescribe the representations and
warranties of the Seller with respect to itself and the Mortgage Loans and
the
management, servicing, transfer and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Seller agree as follows:
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, that comply with applicable federal,
state and local laws and which are in accordance with FNMA servicing practices
and procedures, for MBS pool mortgages, as defined in the FNMA Guides including
future updates.
Agreement:
This
Mortgage Loan Purchase, Warranties and Servicing Agreement including all
exhibits hereto, amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Applicable
Requirements:
Shall
mean and include with respect to the Mortgage Loans: (i) all contractual
obligations of Seller, and the Originator and any Prior Servicers including,
without limitation, those contractual obligations contained in this Agreement,
in any agreement with any insurer or in the Mortgage Loan Documents; (ii) all
applicable federal, state and local legal and regulatory requirements (including
statutes, rules, regulations and ordinances) binding upon Seller, the Originator
and any Prior Servicer; (iii) all other applicable requirements and guidelines
of each governmental agency, board, commission, instrumentality and other
governmental body or office having jurisdiction, including without limitation
those of any insurer; (iv) all other applicable judicial and administrative
judgments, orders, stipulations, awards, writs and injunctions; and (v) Accepted
Servicing Practices.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of ( i) the value thereof as
determined by an appraisal made for the Originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan and (ii) the purchase price paid for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan, provided, however, in the case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is based solely upon the value determined
by an appraisal made for the originator of such Refinanced Mortgage Loan at
the
time of origination of such Refinanced Mortgage Loan.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect of record the sale or transfer
of the Mortgage Loan.
Assignment
and Assumption:
An
assignment and assumption agreement in the form of Exhibit D
hereto.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the State
of
New York, or (iii) a day on which banks in the State of New York are authorized
or obligated by law or executive order to be closed.
Closing
Date:
January
26, 2005,
or such
other date as shall be mutually agreed upon by the parties hereto.
Code:
The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Consumer
Information:
Information including but not limited to all personal information about the
Mortgagors that is supplied to the Seller on behalf of the
Mortgagors.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
2
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled “Chase Home
Finance LLC
In Trust
For Bank of America, National Association owner of various whole loan series
P&I” and
shall
be established in an Eligible Account, in the name of the Person that is the
Purchaser with respect to the related Mortgage Loans.
Cut-off
Date:
January
1,
2005.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
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 first day
of
the month of such Remittance Date.
Eligible
Account:
An
account established and maintained: (a) within FDIC insured accounts (or other
accounts with comparable insurance coverage acceptable to the Rating Agencies)
created, maintained and monitored by the Seller so that all funds deposited
therein are fully insured, (b) with the corporate trust department of a
financial institution assigned one of the two highest long-term debt ratings
and
the highest short term debt rating of each Rating Agency, and, if ownership
of
the Mortgage Loans is evidenced by mortgaged backed securities, the equivalent
ratings of the Rating Agencies, and held such that the rights of the Purchaser
and the owner of the Mortgage Loans shall be fully protected against the claims
of any creditors of the Seller and of any creditors or depositors of the
institution in which such account is maintained and (c) in a separate non-trust
account without FDIC or other insurance in an Eligible Institution. In the
event
that a Custodial Account is established pursuant to clause (b) or (c) of the
preceding sentence, the Seller shall provide the Purchaser with written notice
on the Business Day following the date on which the applicable institution
fails
to meet the applicable ratings requirements.
Eligible
Institution:
An
institution having (i) the highest short-term debt rating, and one of the two
highest long-term debt ratings of each Rating Agency; (ii) with respect to
any
Custodial Account, an unsecured long-term debt rating of at least one of the
two
highest unsecured long-term debt ratings of the Rating Agencies; or (iii)
acceptable as a depository to FNMA or FHLMC under their respective
Guides.
Equity
Take-Out Refinanced Mortgage Loan:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the outstanding
principal balance of the existing mortgage loan.
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled “Chase Home
Finance LLC
In Trust
For Bank of America, National Association owner of various whole loan series
and
various mortgagors T&I” and
shall
be established in an Eligible Account, in the name of the Person that is the
Purchaser with respect to the related Mortgage Loans.
3
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, commonly referred to as Xxxxxxx Mac,
or
any successor thereto.
FHLMC
Guide:
The
FHLMC Single Family Seller/Servicer Guide and all amendments or additions
thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
First Remittance
Date:
February
18,
2005, or if such day is not a Business Day, the first Business Day immediately
preceding such date.
FNMA:
The
Federal National Mortgage Association, commonly referred to as Xxxxxx Mae,
or
any successor thereto.
FNMA
Guides:
The
FNMA Sellers’ Guide and the FNMA Servicers’ Guide and all amendments or
additions thereto.
GAAP:
Generally accepted accounting principles, consistently applied.
Guidelines:
The
FNMA Sellers’ Guide, the FNMA Servicers’ Guide and the FHLMC Single Family
Seller/Servicer Guide.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan, to (i) the Appraised Value of the Mortgaged
Property at origination with respect to a Refinanced Mortgage Loan, and (ii)
the
lesser of the Appraised Value of the Mortgaged Property at origination or the
purchase price of the Mortgaged Property with respect to all other Mortgage
Loans.
4
Manufactured
Home:
A
single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by the Department of Housing and Urban Development
("HUD Code"), as amended in 2000, which preempts state and local building codes.
Each unit is identified by the presence of a HUD Plate/Compliance Certificate
label. The sections are then transported to the site and joined together and
affixed to a pre-built permanent foundation (which satisfies the manufacturer's
requirements and all state, county, and local building codes and regulations).
The manufactured home is built on a non-removable, permanent frame chassis
that
supports the complete unit of walls, floors, and roof. The underneath part
of
the home may have running gear (wheels, axles, and brakes) that enable it to
be
transported to the permanent site. The wheels and hitch are removed prior to
anchoring the unit to the permanent foundation. The manufactured home must
be
classified as real estate and taxed accordingly.
Monthly
Advance:
The
aggregate of the advances made by the Seller on any Remittance Date pursuant
to
Section 5.03.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan which
is
payable by a Mortgagor under the related Mortgage Note.
Monthly
Remittance Advice: The report delivered by the Seller to the Purchaser pursuant
to Section 5.02 of this Agreement in the form annexed hereto as Exhibit
I.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note which creates a first lien on
an
unsubordinated estate in fee simple in real property securing the Mortgage
Note.
With respect to a Co-op Loan, the security agreement creating a security
interest in the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan
and
the related Co-op Lease.
Mortgage
File:
The
mortgage documents pertaining to a particular Mortgage Loan which are specified
in Exhibit A hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as required by Section
4.11.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance with
the provisions of the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased Mortgage
Loans.
5
Mortgage
Loan Documents:
The
documents listed in numbers 1 through 9, 16 and 23 on Exhibit A.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed hereto as Exhibit F, such schedule setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan Package:
(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 an
investor property;
(5)
the
type
of residential property constituting the Mortgaged Property;
(6)
the
original months to maturity or the remaining months to maturity from the 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
Loan-to-Value Ratio at origination;
(8)
the
Mortgage Interest Rate;
(9)
the
stated maturity date;
(10)
the
amount of the Monthly Payment as of the Cut-off Date;
(11)
the
original principal amount of the Mortgage Loan;
(12)
the
principal balance of the Mortgage Loan as of the opening of business on the
Cut-off Date, after deduction of payments of principal due on or before the
Cut-off Date whether or not collected;
(13)
a
code
indicating the purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take-out refinance);
(14)
a
code
indicating the documentation style (i.e. full, alternative or
reduced);
6
(15)
the
number of times during the twelve (12) month period preceding the Closing Date
that any Monthly Payment has been received more than thirty (30) days after
its
Due Date;
(16)
the
date
on which the first payment is or was due;
(17)
a
code
indicating whether or not the Mortgage Loan is the subject of Primary Mortgage
Insurance and, if so, the name of the policy issuer; and
(18)
the
Appraisal Value.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall
set forth the following information, as of the 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;
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Co-op Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a single parcel
of
real estate considered to be real estate under the laws of the State in which
such real property is located, which may include condominium units and planned
unit developments, improved by a residential dwelling;
except
that with respect to real property located in jurisdictions in which the use
of
leasehold estates for residential properties is a widely-accepted practice,
a
leasehold estate of the Mortgagor, the term of which is equal to or longer
than
the term of the Mortgage.
With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization: A
gradual
increase in the mortgage debt that occurs when the monthly fixed installment
is
not sufficient for full application to both principal and interest. The interest
shortage is added to the unpaid principal balance to create “negative”
amortization.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Senior Vice President or a Vice President and by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Seller, and delivered to the Purchaser as required by this
Agreement.
7
Opinion
of Counsel:
A
written Opinion of Counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the Purchaser,
provided that any Opinion of Counsel relating to (a) qualification of the
Mortgage Loans in a REMIC or (b) compliance with the REMIC Provisions, must
be
an Opinion of Counsel who (i) is in fact independent of the Servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer of the Mortgage Loans or in an affiliate of either
and
(iii) is not connected with the Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions. The cost of the
preparation and delivery of any such independent opinion requested by the
Trustee shall be an expense of the Trust Fund unless Purchaser decides, in
its
own discretion, to bear such expense for the Trust Fund, in which case any
such
cost will be borne by Purchaser.
Originator:
With respect
to any Mortgage Loan, the entity(ies) that (i) took the Mortgagor’s loan
application (ii) processed the Mortgagor’s loan application, or (iii) closed
and/or funded the Mortgagor’s Mortgage Loan.
Pass-Through
Transfer:
Either
(i) a Securitization or (ii) a synthetic securitization in which some or all
of
the Mortgage Loans are included as part of the reference portfolio relating
to
such securitization.
Person:
Any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that is subject to a voluntary (not including
discounted payoffs) Principal Prepayment in full or in part during the related
Principal Prepayment Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such related Principal
Prepayment Period, the amount of interest (net of the related Servicing Fee
for
Principal Prepayments in full only) that would have accrued on the amount of
such Principal Prepayment during the period commencing on the date as of which
such Principal Prepayment was applied to such Mortgage Loan and ending on the
last day of the Principal Prepayment Period.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance represented to be in effect pursuant to
the
Mortgage Loan Schedule, or any replacement policy therefor obtained by the
Seller pursuant to Section 4.08 in each case, in a form acceptable to FNMA
or
FHLMC and issued by a Qualified Insurer.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in The
Wall Street Journal
(Northeast Edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial which
is received in advance of its scheduled Due Date, including any prepayment
penalty or premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal
Prepayment Period:
With
respect to any Remittance Date, the calendar month immediately preceding the
month in which the related Remittance Date occurs.
8
Prior
Servicer:
Any
Person that was a servicer of any Mortgage Loan before Seller became the
Servicer of the Mortgage Loan, if applicable.
Purchase
Price:
As
defined in Section 2.02.
Purchase
Price and Terms Letter:
As
defined in the Recitals to this Agreement.
Purchaser:
Bank of
America, National Association, its successors in interest and
assigns.
Qualified
Appraiser:
An
appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and such appraiser and the appraisal made by such appraiser both satisfy
the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by FNMA and FHLMC.
Rating
Agencies:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies
Inc., Xxxxx’x Investors Service, Inc. or, in the event that some or all
ownership of the Mortgage Loans is evidenced by mortgage-backed securities,
the
nationally recognized rating agencies issuing ratings with respect to such
securities, if any.
Reconstitution
Agreement:
Any of
the agreement or agreements entered into by the Purchaser and/or certain third
parties, and if necessary the Seller, on the Reconstitution Date or Dates with
respect to any or all of the Mortgage Loans conveyed hereunder, in connection
with a Whole Loan Transfer, Agency Transfer, or a Pass-Through Transfer as
set
forth in Section 11.01.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans purchased pursuant
to
this Agreement shall be reconstituted as part of a Whole Loan Transfer, Agency
Transfer, or a Pass-Through Transfer pursuant to Section 11.01.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which were
used in whole or part to satisfy an existing mortgage.
Regulation
X:
HUD
regulations implementing RESPA.
REMIC:
A “real
estate mortgage investment conduit,” as such term is defined in 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 affect from time to time.
9
Remittance
Date:
The
18th day of any month, beginning with the First Remittance Date, or if such
18th
day is not a Business Day, the first Business Day immediately preceding such
18th day.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Seller in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Seller on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
During
the first 365 days after the Closing Date, the Repurchase Price shall be a
price
equal to the Purchase Price Percentage, as defined in the Purchase Price and
Terms Letter, times the outstanding principal balance of such Mortgage Loan,
plus accrued interest at the annual rate of interest borne on the Mortgage
Note,
less the Servicing Fee. Beginning 365 days following the Closing Date, the
Repurchase Price shall be a price equal to par (100%) times the outstanding
principal balance of such Mortgage Loan, plus accrued interest at the annual
rate of interest borne on the Mortgage Note.
RESPA:
The
Real Estate Settlement Procedures Act, as amended.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Sarbanes
Certifying Party:
A
Person who provides certification required under the Xxxxxxxx-Xxxxx Act of
2002
in connection with a Securitization or other securitization
transaction.
Securitization:
The
transfer of the Mortgage Loans to a trust formed as part of a publicly issued
and/or privately placed, rated securitization, including the issuance of the
related securities.
Seller’s
Officer’s Certificate:
A
certificate signed by the Chairman of the Board, President, any Vice President
or Treasurer of Seller which shall (i) identify the recorded document, (ii)
state that the recorded document has not been delivered to the Purchaser, or
its
designee, due solely to a delay by the public recording office, and (iii)
specify the date the Seller expects that the applicable recorded document will
be delivered to the Purchaser or its designee.
Servicer:
Chase
Home
Finance LLC,
its
successors and assigns.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its servicing obligations, including, but not
limited to, the cost of (a) the preservation, restoration and protection of
the
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Seller specifies the
Mortgage Loan(s) to which such expenses relate, and provided further that any
such enforcement, administrative or judicial proceeding does not arise out
of a
breach of any representation, warranty or covenant of the Seller hereunder),
(c)
the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage, (e) any expenses reasonably
sustained by the Seller, as servicer, with respect to the liquidation of the
Mortgaged Property in accordance with the terms of this Agreement and (f)
compliance with the obligations under Section 4.08.
10
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Seller, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Seller, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate:
The
Servicing Fee Rate shall be a rate per annum equal to 25 basis points
(0.25%).
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser or its designee and copies of the Mortgage Loan Documents listed
in
Exhibit A, the originals of which are delivered to the Purchaser or its designee
pursuant to Section 2.04.
Servicing
Officer:
Any
officer of the Seller involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Seller to the Purchaser upon request, as such list
may
from time to time be amended.
Servicing
Rights:
Means
the obligations to collect the payments for the reduction of principal and
application of interest, pay taxes and insurance, remit collected payments,
provide foreclosure services, provide full escrow administration and otherwise
administer the Mortgage Loans in accordance with Applicable Requirements,
together with the right to receive the servicing fee income and any ancillary
income arising from or connected to the Mortgage Loans. Servicing Rights shall
include retention of the related escrow or impound accounts created and
maintained by Seller with respect to the Mortgage Loans for the deposit and
retention of interest and principal, taxes, assessments or grounds rents, hazard
and mortgage insurance and other related escrow or custodial items.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
such Mortgage Loan at the Cut-off Date after giving effect to payments of
principal due on or before such date, whether or not received, minus (ii) all
amounts previously distributed to the Purchaser with respect to the Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
11
Subservicer:
Any
subservicer which is subservicing the Mortgage Loans pursuant to a Subservicing
Agreement. Any Subservicer shall meet the qualifications set forth in Section
4.01.
Subservicing
Agreement:
An
agreement between the Seller and a Subservicer for the servicing of the Mortgage
Loans.
Trust:
Any
trust identified by Purchaser into which Mortgage Loans have been placed as
part
of a reconstitution.
Trust
Agreement:
The
agreement pursuant to which the Trust is created.
Trustee:
Any
trustee identified by Purchaser in connection with any Trust.
Trust
Fund:
Any
trust fund identified by the Trustee with respect to a Trust.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS;
RECORD
TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
Section
2.01.
|
Agreement
to Purchase.
|
The
Seller agrees to sell and the Purchaser agrees to purchase the Mortgage Loans,
exclusive of the Servicing
Rights associated
therewith, having an aggregate principal balance on the Cut-off Date in an
amount as set forth in the Mortgage Loan Schedule. The Seller shall deliver
the
Mortgage Loan Schedule for the Mortgage Loans to be purchased on the Closing
Date to the Purchaser at least two (2) Business Days prior to the Closing
Date.
|
Section
2.02.
|
Purchase
Price.
|
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the Purchase Price and Terms Letter (subject to adjustment as provided
therein), multiplied by the aggregate principal balance, as of the Cut-off
Date,
of the Mortgage Loans listed on the attached Mortgage Loan Schedule, after
application of scheduled payments of principal due on or before the Cut-off
Date
whether or not collected. The initial principal amount of the Mortgage Loans
shall be the aggregate principal balance of the Mortgage Loans, so computed
as
of the Cut-off Date.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date at the weighted average Mortgage Loan
Remittance Rate of the Mortgage Loans.
The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid on the Closing Date by wire transfer of immediately available
funds.
12
The
Purchaser shall be entitled to (1) all scheduled principal due after the Cut-off
Date, (2) all other recoveries of principal collected on or after the Cut-off
Date (provided, however, that all scheduled payments of principal due on or
before the Cut-off Date and collected by the Seller or any successor servicer
after the Cut-off Date shall belong to the Seller), and (3) all payments of
interest on the Mortgage Loans net of applicable Servicing Fees (minus that
portion of any such payment which is allocable to the period prior to the
Cut-off Date). The outstanding principal balance of each Mortgage Loan as of
the
Cut-off Date is determined after application of payments of principal due on
or
before the Cut-off Date whether or not collected, together with any unscheduled
Principal Prepayments collected prior to the Cut-off Date; provided, however,
that payments of scheduled principal and interest prepaid for a Due Date beyond
the Cut-off Date shall not be applied to the principal balance as of the Cut-off
Date. Such prepaid amounts shall be the property of the Purchaser. The Seller
shall deposit any such prepaid amounts into the Custodial Account, which account
is established for the benefit of the Purchaser for subsequent remittance by
the
Seller to the Purchaser.
If,
subsequent to the Closing Date, the amount on which the Purchase Price with
respect to a Mortgage Loan was based is found to be in error, or if, for any
other reason, the Purchase Price or such other amounts are found to be in error,
within ten (10) Business Days of the receipt of information sufficient to
provide notice that payment is due the party benefiting from the error shall
pay
an amount sufficient to correct and reconcile the Purchase Price plus interest
thereon at an agreed upon market rate or such other amounts and shall provide
a
reconciliation statement and such other documentation sufficient reasonably
to
satisfy the other party concerning the accuracy of such
reconciliation.
|
Section
2.03.
|
Servicing
of Mortgage Loans.
|
Simultaneously
with the execution and delivery of this Agreement, the Seller does hereby agree
to service the Mortgage Loans listed on the Mortgage Loan Schedule subject
to
the terms of this Agreement. The rights of the Purchaser to receive payments
with respect to the related Mortgage Loans shall be as set forth in this
Agreement.
|
Section
2.04.
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
As
of the
Closing Date, the Seller shall sell, transfer, assign, set over and convey
to
the Purchaser, without recourse, and the Seller hereby acknowledges that as
of
the Closing Date the Purchaser shall have, subject to the terms of this
Agreement, all of the right, title and interest of the Seller in and to the
Mortgage Loans. The delivery of the Mortgage Files on the Closing Date shall
be
at the expense of the Seller. The Seller shall maintain a Servicing File
consisting of a copy of the contents of each Mortgage File and the originals
of
the documents in each Mortgage File not delivered to the Purchaser or its
designee. The Servicing File shall contain all documents necessary to service
the Mortgage Loans. The possession of each Servicing File by the Seller is
at
the will of the Purchaser, for the sole purpose of servicing the related
Mortgage Loan, and such retention and possession by the Seller is in a custodial
capacity only. From the Closing Date, the ownership of each Mortgage Loan,
including the Mortgage Note, the Mortgage, the contents of the related Mortgage
File and all rights, benefits, proceeds and obligations arising therefrom or
in
connection therewith, shall be vested in the Purchaser. All rights arising
out
of the Mortgage Loans including, but not limited to, all funds received on
or in
connection with the Mortgage Loans and all records or documents with respect
to
the Mortgage Loans prepared by or which come into the possession of the Seller
shall be received and held by the Seller in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans. Any portion of the Mortgage Files
retained by the Seller shall be appropriately identified in the Seller’s
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. The Seller shall release its custody of the contents of the Mortgage
Files only in accordance with written instructions of the Purchaser, except
when
such release is required as incidental to the Seller’s servicing of the Mortgage
Loans or is in connection with a repurchase of any Mortgage Loan or Loans with
respect thereto pursuant to this Agreement, such written instructions shall
not
be required.
13
|
Section
2.05.
|
Books
and Records.
|
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller. The Seller shall be
responsible for maintaining, and shall maintain, a complete set of books and
records for the Mortgage Loans which shall be appropriately identified in the
Seller’s computer system to clearly reflect the ownership of the Mortgage Loan
by the Purchaser. In particular, the Seller shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of FNMA or FHLMC, as
applicable, including but not limited to documentation as to the method used
in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval
by
Seller and periodic inspection reports as required by Section 4.13. To the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
may be in the form of microfilm or microfiche or such other reliable means
of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Seller complies with the requirements of the FNMA
Guides.
The
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
In
addition to the foregoing, Seller shall provide to any supervisory agents or
examiners that regulate Purchaser, including but not limited to, the Office
of
the Comptroller of the Currency (“OCC”) and other comparable regulatory
authorities supervising the Purchaser and other similar entities, access, during
normal business hours, upon reasonable advance notice to Seller and without
charge to Purchaser or such supervisory agents or examiners, to any
documentation regarding the Mortgage Loans that may be required by any
applicable regulator. It is anticipated that Purchaser will reimburse Seller
for
its out-of-pocket expenses incurred in complying with this
requirement.
|
Section
2.06.
|
Transfer
of Mortgage Loans.
|
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this Agreement or any Mortgage Loan unless a notice of the transfer
of such Mortgage Loan has been delivered to the Seller in accordance with this
Section 2.06 and the books and records of the Seller show such person as the
owner of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however,
that
(i) the transferee will not be deemed to be a Purchaser hereunder binding upon
the Seller unless such transferee shall agree in writing to be bound by the
terms of this Agreement and an original counterpart of the instrument of
transfer and an Assignment and Assumption of this Agreement substantially in
the
form of Exhibit D hereto executed by the transferee shall have been delivered
to
the Seller, (ii) in no event shall there be more than four (4) Persons at any
given time having the status of “Purchaser” under each of the Reconstitution
Agreements, as more particularly described in Sections 11.01 and 12.12
hereunder, and (iii) if the Seller is to service pursuant to a Reconstitution
Agreement , such agreement will not contain any greater obligations on the
part
of the Seller than are contained in this Agreement. The Purchaser also shall
advise the Seller of the transfer. Upon receipt of notice of the transfer,
the
Seller shall xxxx its books and records to reflect the ownership of the Mortgage
Loans of such assignee, and the previous Purchaser shall be released from its
obligations hereunder with respect to the Mortgage Loans sold or
transferred.
14
|
Section
2.07.
|
Delivery
of Mortgage Loan Documents.
|
The
Seller shall deliver and release to the Purchaser or its designee, Wachovia
Bank,
National
Association, the Mortgage Loan Documents. The Mortgage Loan Documents shall
be
delivered by the Seller to the Purchaser or its designee, Wachovia
Bank,
National
Association, at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxx Xxxxxx, at least five (5) Business Days prior to the Closing
Date
pursuant to a bailee letter agreement.
All
other documents in Exhibit A hereto, together with all other documents executed
in connection with the Mortgage Loan that Seller may have in its possession,
shall be retained by the Servicer in trust for the Purchaser. If the Seller
cannot deliver the original recorded Mortgage Loan Documents or the original
policy of title insurance, including riders and endorsements thereto, on the
Closing Date, the Seller shall, promptly upon receipt thereof and in any case
not later than 180 days from the Closing Date, deliver such original documents,
including original recorded documents, to the Purchaser or its designee (unless
the Seller is delayed in making such delivery by reason of the fact that such
documents shall not have been returned by the appropriate recording office).
If
delivery is not completed within 180 days of the Closing Date solely due to
delays in making such delivery by reason of the fact that such documents shall
not have been returned by the appropriate recording office, Seller shall deliver
a copy of such document, if not previously delivered, and a Seller’s Officer’s
Certificate to Purchaser, or its designee. In the event that documents have
not
been received by the date specified in the Seller’s Officer’s Certificate, a
subsequent Seller’s Officer’s Certificate shall be delivered by such date
specified in the prior Seller’s Officer’s Certificate, stating a revised date
for receipt of documentation. The procedure shall be repeated until the
documents have been received and delivered. The Seller shall continue to use
commercially reasonable best efforts to effect delivery within 270 days of
the
Closing Date.
The
Seller shall pay all initial recording fees, for the Assignments of Mortgage
or
Form UCC-3’s for Co-op Loans and any other fees in connection with the transfer
of all original documents to the Purchaser or its designee. Seller shall
prepare, in recordable form, all Assignments of Mortgage or Form UCC-3’s for
Co-op Loans necessary to assign the Mortgage Loans to Purchaser, or its
designee. Seller shall be responsible for recording the Assignments of Mortgage
or Form UCC-3’s for Co-op Loans.
15
Seller
shall provide a copy of the title insurance policy to Purchaser or its designee
within ninety (90) days of the receipt of the recorded documents (required
for
issuance of such policy) from the applicable recording office.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in no
way
alter or reduce the Seller’s obligations hereunder.
If
the
Purchaser or its designee discovers any defect with respect to a Mortgage File,
the Purchaser shall, or shall cause its designee to, give written specification
of such defect to the Seller in the exception report or the certification
delivered pursuant to this Section 2.07, and the Seller shall cure or repurchase
such Mortgage Loan in accordance with Section 3.03.
The
Seller shall forward to the Purchaser, or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 in accordance
with the FNMA Guides; provided, however, that the Seller shall provide the
Purchaser, or its designee, with a certified true copy of any such document
submitted for recordation within one week of its execution, and shall provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within sixty (60) days of its submission for
recordation.
From
time
to time, in order to fulfill its obligations hereunder, the Seller may have
a
need for Mortgage Loan Documents to be released by Purchaser, or its designee.
Purchaser shall, or shall cause its designee, upon the written request of the
Seller, within ten (10) Business Days, deliver to the Seller, any requested
documentation previously delivered to Purchaser or its designee as part of
the
Mortgage File, provided that such documentation is promptly returned to
Purchaser, or its designee, when the Seller no longer requires possession of
the
document, and provided that during the time that any such documentation is
held
by the Seller, such possession is in trust for the benefit of Purchaser. Seller
shall indemnify Purchaser, and its designee, from and against any and all
losses, claims, damages, penalties, fines, forfeitures, costs and expenses
(including court costs and reasonable attorney’s fees) resulting from or related
to the loss, damage, or misplacement of any documentation delivered to Seller
pursuant to this paragraph.
Any
and
all documents required to be delivered pursuant to this Section 2.07 other
than
those Mortgage Loan Documents required to be delivered within five (5) Business
Days prior to the Closing Date pursuant to a bailee letter agreement shall
be
delivered to the following addressee: Wachovia Bank, National Association,
0000
Xxxxxxxxxxxx Xxxxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxx
Xxxxxx.
|
Section
2.08.
|
Quality
Control Procedures.
|
The
Seller must have an internal quality control program that verifies, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program must be capable
of
evaluating and monitoring the overall quality of its loan production and
servicing activities. The program is to ensure that the Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
16
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
SELLER; REPURCHASE; REVIEW OF MORTGAGE LOANS
|
Section
3.01.
|
Representations
and Warranties of the Seller.
|
The
Seller represents, warrants and covenants to the Purchaser that as of the
Closing Date or as of such date specifically provided herein:
(a) The
Seller is a limited
liability company
duly
organized, validly existing and in good standing under the laws of the State
of
Delaware
and has
all licenses necessary to carry out its business as now being conducted, and
is
licensed and qualified to transact business in and is in good standing under
the
laws of each state in which any Mortgaged Property is located or is otherwise
exempt under applicable law from such licensing or qualification or is otherwise
not required under applicable law to effect such licensing or qualification
and
no demand for such licensing or qualification has been made upon such Seller
by
any such state, and in any event such Seller is in compliance with the laws
of
any such state to the extent necessary to ensure the enforceability of each
Mortgage Loan and the servicing of the Mortgage Loans in accordance with the
terms of this Agreement;
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and to conduct its business as presently conducted, has duly
authorized the execution, delivery and performance of this Agreement and any
agreements contemplated hereby, has duly executed and delivered this Agreement,
and any agreements contemplated hereby, and this Agreement and each Assignment
of Mortgage to the Purchaser and any agreements contemplated hereby, constitutes
a legal, valid and binding obligation of the Seller, enforceable against it
in
accordance with its terms, and all requisite corporate action has been taken
by
the Seller to make this Agreement and all agreements contemplated hereby valid
and binding upon the Seller in accordance with their terms;
(c) None
of
the execution and delivery of this Agreement, the origination of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser, the
consummation of the transactions contemplated hereby, or the fulfillment of
or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Seller’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Seller is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject or impair the ability of the
Purchaser to realize on the Mortgage Loans or impair the value of the Mortgage
Loans;
(d) Each
Mortgage Note, each Mortgage, each Assignment of Mortgage and any other
documents required pursuant to this Agreement to be delivered to the Purchaser
or its designee, or its assignee for each Mortgage Loan, have been, on or before
the Closing Date, delivered to the Purchaser or its designee, or its
assignee;
17
(e) There
is
no litigation, suit, proceeding or investigation pending or threatened, or
any
order or decree outstanding, with respect to the Seller which is reasonably
likely to have a material adverse effect on the sale or servicing of the
Mortgage Loans, the execution, delivery, performance or enforceability of this
Agreement, or which is reasonably likely to have a material adverse effect
on
the financial condition of the Seller;
(f) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement, except for consents, approvals,
authorizations and orders which have been obtained;
(g) The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(h) The
Seller is a member of MERS in good standing;
(i) The
Seller used no adverse selection procedures in selecting from among the
outstanding first lien residential mortgage loans owned by it which were
available for inclusion in the sale to Purchaser;
(j) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(k) The
Seller
is
an approved seller/servicer of residential mortgage loans for FNMA/FHLMC and
HUD, with such facilities, procedures and personnel necessary for the sound
servicing of such mortgage loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by the OCC, and is in good standing to sell mortgage
loans to and service mortgage loans for FNMA/FHLMC and no event has occurred
which would make Seller unable to comply with eligibility requirements or which
would require notification to either FNMA or FHLMC;
(l) The
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of the Seller’s creditors;
(m) No
statement, tape, diskette, form, report or other document prepared by, or on
behalf of, Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby, contains or will contain any statement that
is
or will be inaccurate or misleading in any material respect;
(n) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement; in the opinion of Seller, the consideration received by Seller upon
the sale of the Mortgage Loans to Purchaser under this Agreement constitutes
fair consideration for the Mortgage Loans under current market
conditions;
18
(o) If
requested by the Purchaser, the Seller has delivered to the Purchaser financial
statements as to its last two complete fiscal years. All such financial
statements fairly present the pertinent results of operations and changes in
financial position for each of such periods and the financial position at the
end of each such period of the Seller and its subsidiaries and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved, except as set forth in the notes thereto. There has been no change
in
the business, operations, financial condition, properties or assets of the
Seller since the date of the Seller’s financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement; and
(p) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans.
|
Section
3.02.
|
Representations
and Warranties as to Individual Mortgage
Loans.
|
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the Closing Date (unless another date is specified in the body
of
the representation and warranty) as follows:
(a) The
information set forth in the Mortgage Loan Schedule and in the electronic data
file provided to the Purchaser by the Seller on or about January
21,
2005,
with
respect to the Mortgage Loans is complete, true and correct in all material
respects as of the Cut-Off Date;
(b) With
respect to a Mortgage Loan that is not a Co-op Loan, the Mortgage creates a
valid, subsisting and enforceable first lien or a first priority ownership
interest in an estate in fee simple in real property securing the related
Mortgage Note. With respect to a Mortgage Loan that is a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in the
stock ownership
associated with the cooperative unit securing the related Mortgage
Note;
(c) All
payments due prior to the Cut-off Date for such Mortgage Loan have been made
and
credited as of the Closing Date; there are no defaults under the terms of the
Mortgage Loan; the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; and there has been no more than one delinquency during the preceding
twelve-month period, and such delinquency did not last more than thirty (30)
days;
(d) There
are
no defaults by Seller in complying with the terms of the Mortgage, and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
to the extent any such recordation is required by law, or, necessary to protect
the interest of the Purchaser. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, from the terms thereof except in connection with an assumption
agreement and which assumption agreement is part of the Mortgage File and the
terms of which are reflected in the Mortgage Loan Schedule; the substance of
any
such waiver, alteration or modification has been approved by the issuer of
any
related Primary Mortgage Insurance Policy and title insurance policy, to the
extent required by the related policies;
19
(f) The
Mortgage Note and the Mortgage are 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 the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any state
or federal bankruptcy or insolvency proceeding at the time the Mortgage Loan
was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the FNMA Guides, against loss by
fire, hazards of extended coverage and such other hazards as are provided for
in
the FNMA Guides or by FHLMC, as
well
as all additional requirements set forth in Section 4.10 of this Agreement.
All
such standard hazard policies are in full force and effect and on the date
of
origination contained a standard mortgagee clause naming the Seller and its
successors in interest and assigns as mortgagee loss payee and such clause
is
still in effect and all premiums due thereon have been paid. If required by
the
Flood Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered
by a flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section 4.10
of this Agreement. Such policy was issued by an insurer acceptable under FNMA
or
FHLMC guidelines. The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and binding obligation
of
the Insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in,
and
has no knowledge of the Mortgagor’s or any Originator’s or Prior Servicer’s
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of either;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, all applicable predatory, usury, truth-in-lending, RESPA, consumer
credit protection, equal credit opportunity or disclosure laws applicable to
the
Mortgage Loan have been complied with; the Seller has maintained, and as
Servicer shall continue to maintain, evidence of such compliance as required
by
applicable law or regulation and shall make such evidence available for
inspection at Seller’s office during normal business hours upon reasonable
advance notice;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
20
(j) The
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property, including for Mortgage Loans that are not Co-op Loans,
on
all buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any time
with
respect to the foregoing securing the Mortgage Note’s original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence of
any
security interest or other interest or right thereto. Such lien is free and
clear of all adverse claims, liens and encumbrances having priority over the
first lien of the Mortgage subject only to (1) the lien of non-delinquent
current real property taxes and assessments not yet due and payable, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording which are acceptable
to
mortgage lending institutions generally and either (A) which are referred to
in
either the Originator’s title insurance policy (to the extent short form
policies are not utilized) or in the appraisal made for the Originator of the
Mortgage Loan, or (B) which do not adversely affect the Appraised Value of
the
Mortgaged Property as set forth in such appraisal, and (3) other matters to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage or
the
use, enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein, and the Seller has the full right
to
sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to bankruptcy, insolvency and
other laws of general application affecting the rights of creditors and the
Seller has taken all action necessary to transfer such rights of enforceability
to the Purchaser. All parties to the Mortgage Note and the Mortgage had the
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of Seller or the Mortgagor, or, to the best
of
Seller’s knowledge, on the part of any other party involved in the origination
of the Mortgage Loan. The proceeds of the Mortgage Loan have been fully
disbursed and 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 have been satisfied. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and
the
recording of the Mortgage were paid or are in the process of being paid, and
the
Mortgagor is not entitled to any refund of any amounts paid or due under the
Mortgage Note or Mortgage;
(l) The
Seller is the sole owner of the Mortgage Loan and the indebtedness evidenced
by
each Mortgage Note, and the Seller (or the Seller’s designee, Mortgage
Electronic Registration System, Inc. (“MERS”)),
is the
holder of the Mortgage, except for the Assignments of Mortgage which have not
yet been sent for recording or recorded, and upon recordation the Seller (or
its
designee, MERS) will be the holder of record of each Mortgage and the
indebtedness evidenced by each Mortgage Note, and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Purchaser or the Purchaser’s
designee, in trust, only for the purpose of servicing and supervising the
servicing of each Mortgage Loan. Immediately prior to the transfer and
assignment to the Purchaser on the Closing Date, the Mortgage Loan, including
the Mortgage Note and the Mortgage, were not subject to an assignment (other
than the assignments to Seller’s designee, MERS, if applicable), sale or pledge,
and the Seller had good and marketable title to and was the sole owner thereof
and had full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the Closing Date, the Seller
will have no right to modify or alter the terms of the sale of the Mortgage
Loan
and the Seller will have no obligation or right to repurchase the Mortgage
Loan
or substitute another Mortgage Loan, except as provided in this Agreement,
or as
otherwise agreed to by the Seller and the Purchaser;
21
(m) Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA lender’s title
insurance policy or other generally acceptable form of policy or insurance
acceptable to FNMA or FHLMC, issued
by
a title insurer acceptable to FNMA or FHLMC and qualified to do business in
the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained in (j)(1), (2) and (3) above) the Seller, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender’s title insurance policy, such
title insurance policy has been duly and validly endorsed to the Purchaser
or
the assignment to the Purchaser of the Seller’s interest therein does not
require the consent of or notification to the insurer and such lender’s title
insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration; and
neither the Seller nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m) above and all
improvements on the Mortgaged Property comply with all applicable zoning and
subdivision laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Seller. The Mortgage Loan complies
with all the terms, conditions and requirements of the Seller’s underwriting
standards in effect at the time of origination of such Mortgage Loan, a copy
of
which have been provided to the Purchaser. The Mortgage Notes and Mortgages
(exclusive of any riders) are on forms acceptable to FNMA or FHLMC. Seller
is
currently selling loans to FNMA and/or FHLMC which are the same document forms
as the Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage
Loan
bears interest at a fixed rate as set forth in the Mortgage Loan Schedule,
and
Monthly Payments under the Mortgage Note are due and payable on the first day
of
each month. The Mortgage contains the usual and enforceable provisions for
the
acceleration of the payment of the unpaid principal amount of the Mortgage
Loan
if the related Mortgaged Property is sold or transferred without the prior
consent of the mortgagee thereunder;
22
(r) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the Mortgage
Loan there was, there has not been, and there currently is, no proceeding
pending, or to the actual knowledge of Seller threatened, for the total or
partial condemnation of the Mortgaged Property. To the best of Seller’s
knowledge, there are no such proceedings scheduled to commence at a future
date;
(s) The
related Mortgage contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (2) otherwise by judicial foreclosure. There is no homestead
or other exemption available to the Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses,
except as may be required by local law, are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, approved by the Seller, who had no interest, direct or indirect,
in
the Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of FNMA
or
FHLMC and Title XI FIRREA
and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated. The appraisal is in a form acceptable to FNMA or FHLMC
and
was made by a Qualified Appraiser;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state, or
(2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of such mortgage loans;
23
(y) The
Mortgage Loan does not contain “graduated payment”, “contingent interest”,
“shared appreciation” or “buy-down” features;
(z) The
Mortgagor was not in bankruptcy on the date of origination of the Mortgage
Loan
and, to the best of the Seller’s knowledge, as of the Cut-Off Date, the
Mortgagor is not insolvent or in bankruptcy and the Seller has no knowledge
of
any circumstances or condition with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor’s credit standing that could reasonably
be expected to cause investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or materially
adversely affect the value or marketability of the Mortgage Loan;
(aa) The
Mortgage Loans are fixed rate mortgage loans. The Mortgage Loans have an
original term to maturity of not more than thirty (30) years, with interest
payable in arrears on the first day of each month. Each Mortgage Note requires
equal monthly payments which are sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate. No Mortgage Loan contains terms or provisions
which would result in Negative Amortization;
(bb) In
the
event any Mortgage Loan has an LTV greater than 80.0% at origination, (i) the
excess of the principal balance of the Mortgage Loan over 75.0% of the Appraised
Value of the Mortgaged Property with respect to a Refinanced Mortgage Loan,
or
(ii) the lesser of the Appraised Value or the purchase price of the Mortgaged
Property with respect to a purchase money Mortgage Loan, is insured as to
payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer, except for any Primary Mortgage Insurance Policy that is cancelled
or
terminated as required by law between the Cut-Off Date and the Closing Date.
All
provisions of such Primary Mortgage Insurance Policies referenced in the
preceding sentence have been and are being complied with, such policy is in
full
force and effect, and all premiums due thereunder have been paid. No Mortgage
Loan requires payment of such premiums, in whole or in part by the Purchaser.
No
action, inaction, or event has occurred and no state of facts exists that has
or
will result in the exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a Primary Mortgage Insurance Policy obligates the
Mortgagor thereunder to maintain the Primary Mortgage Insurance Policy and
to
pay all premiums and charges in connection therewith. The Mortgage Interest
Rate
for the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of
any
such insurance premium. As of the date of origination, no Mortgage Loan had
an
LTV greater than 95%;
(cc) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) As
to
Mortgage Loans that are not Co-op, the Mortgaged Property is located in the
state identified in the Mortgage Loan Schedule and consists of a single parcel
of real property with a detached single family residence erected thereon, or
a
two-to four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development, provided, however,
that no residence or dwelling is a mobile home or Manufactured Home.
As
of the
date of origination, no portion of the Mortgaged Property was used for
commercial purposes (as per the FNMA Guides), and since the date of origination,
to the best of the Seller’s knowledge, no portion of the Mortgaged Property was
used for commercial purposes (as per the FNMA Guides);
(ee) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
funds were disbursed in connection with the Mortgage Loan. The Mortgage Note
is
payable on the first day of each month in equal monthly installments of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than thirty (30) years from commencement of
amortization;
24
(ff) As
of the
date of origination of the Mortgage Loan, the Mortgaged Property was lawfully
occupied under applicable law, and 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;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development), or stock in a cooperative housing
corporation, such
condominium, cooperative, or planned unit development project meets Seller’s
eligibility requirements as set forth in Seller’s underwriting
guidelines;
(hh) To
the
best of Seller’s knowledge, there is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law,
rule or regulation is an issue; to the best of Seller’s knowledge, there is no
violation of any environmental law, rule or regulation with respect to the
Mortgaged Property, and Seller has not received notice of any such violation;
and nothing further remains to be done to satisfy in full all requirements
of
each such law, rule or regulation constituting a prerequisite to use and
enjoyment of said property;
(ii) No
Mortgage Loan was made in connection with the construction or rehabilitation
of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(jj) No
action
has been taken or failed to be taken by Seller, on or prior to the Closing
Date
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any Primary Mortgage Insurance Policy (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the
availability of the timely payment of the full amount of the loss otherwise
due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, or for any other reason
under such coverage;
(kk) The
origination, collection and servicing practices used by the Seller, any
Originator and Prior Servicers, with respect to each Mortgage Note and Mortgage
have been in compliance with Applicable Requirements, and in all material
respects proper and prudent in the mortgage origination and servicing business.
With respect to escrow deposits and payments that the Seller is entitled to
collect, all such payments are in the possession of, or under the control of,
the Seller, and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All escrow
payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. As to any Mortgage
Loan that is the subject of an escrow, escrow of funds is not prohibited by
applicable law and has been established in an amount sufficient to pay for
every
escrowed item that remains unpaid and has been assessed but is not yet due
and
payable. No escrow deposits or other charges or payments due under the Mortgage
Note have been capitalized under any Mortgage or the related Mortgage
Note;
(ll) With
respect to each Co-op Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative shares securing
the related cooperative note and lease, subject only to (a) liens of the
cooperative for unpaid assessments representing the Mortgagor’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.
There are no liens against or security interests in the cooperative shares
relating to each Co-op Loan (except for unpaid maintenance, assessments and
other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Co-op Loan), which
have priority equal to or over the Seller’s security interest in such
cooperative shares;
25
(mm) With
respect to each Co-op Loan, a search for filings of financing statements has
been made by a company competent to make the same, which company is acceptable
to FNMA and qualified to do business in the jurisdiction where the cooperative
unit is located, and such search has not found anything which would materially
and adversely affect the Co-op Loan;
(nn) With
respect to each Co-op Loan, the related cooperative corporation that owns title
to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Internal Revenue Code, and
is in material compliance with applicable federal, state and local laws which,
if not complied with, could have a material adverse effect on the Mortgaged
Property;
(oo) With
respect to each Co-op Loan, there is no prohibition against pledging the shares
of the cooperative corporation or assigning the Co-op Lease;
(pp) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority;
(qq) The
Mortgage Loan is not secured by a leasehold
interest
under
such ground lease;All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments, ground rents relating to the Mortgage Loans have
been paid by Seller to the extent such items are required to be paid by Seller
pursuant to Applicable Requirements and as herein provided;
(rr) Each
Mortgage Loan shall have a tax service contract and flood insurance monitoring
contract which shall have a term of the life of the Mortgage Loan;
(ss) The
Pool
Statistics for the Mortgage Loans are as reflected on Exhibit E attached hereto,
which statistics are accurate as of the Cut-Off Date;
(tt) No
Mortgage Loan is (a) a “high cost” loan under the Home Ownership and Equity
Protection Act of 1994 as amended, or (b) a “high cost,” “threshold,” “covered,”
“predatory,” “abusive” (as defined by the Rating Agencies), or similarly defined
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), provided that any Mortgage
Loan
secured by a Mortgaged Property in Illinois characterized as a “threshold” loan
shall not be a “high cost” loan unless it is characterized as “predatory” under
applicable local law or (c) a “High Cost Loan” or “Covered Loan” as defined in
the S&P LEVELS Glossary Version 5.6;
(uu) No
proceeds of any Mortgage Loan were used to finance single-premium credit
insurance policies;
(vv) No
Mortgage Loan will impose a prepayment premium;
26
(ww) The
Mortgagor has not notified the Seller, and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under Servicemembers
Civil
Relief
Act,
as
amended, or any similar state law;
(xx) No
Mortgage Loan secured by a Mortgaged Property located in the State of Georgia
was originated on or after October 1, 2002, and on or before March 7, 2003,
with
an initial balance less than or equal to $322,700.00;
(yy) 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;
(zz) No
Mortgage Loan is a “pledged asset” mortgage loan;
(aaa) To
the
extent applicable to the originator of the Mortgage Loan, the Seller or the
originator of the Mortgage Loan has complied with the Bank Secrecy Act,
including specifically, the amendment set forth in the USA Patriot Act of
2001;
(bbb) Each
Mortgage
Loan has a non-zero FICO score and a minimum FICO score of 625;
(ccc) The
Mortgagor related to each Mortgage Loan had a debt-to-income ratio of 60% or
less as of the origination date of the Mortgage Loan. With respect to each
Mortgage Loan with an original principal balance of $1 million or more (i)
the
related Mortgagor had a debt-to-income ratio of 50% or less as of the date
of
origination of such Mortgage Loan, (ii) the Mortgage Loan has a reserve of
no
less than six (6) months, (iii) the LTV is 70% or less, and (iv) the Mortgage
Loan has a Mortgage File that includes (A) a full appraisal of the Mortgaged
Property and (B) full loan origination documentation that includes income and
asset verification forms; and
(ddd) The
parties hereto agree and understand that it is not intended that any mortgage
loan be included in the sale that is a “High-Cost Home Loan” as defined in the
New Jersey Home Ownership Act effective November 27, 2003 and in the New Mexico
Home Loan Protection Act effective January 1, 2004.
|
Section
3.03.
|
Repurchase;
Substitution.
|
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans, delivery
of
the Mortgage Loan Documents to the Purchaser, or its designee, and shall inure
to the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination,
or lack of examination, of any Mortgage File. Upon discovery by either the
Seller or the Purchaser of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the value of a Mortgage Loan
or the Mortgage Loans or the interest of the Purchaser in any Mortgage Loan
or
all of the Mortgage Loans, the party discovering such breach shall give prompt
written notice to the other. The Seller shall have a period of sixty (60) days
from the earlier of its discovery or its receipt of notice of any such breach
within which to correct or cure such breach. The Seller hereby covenants and
agrees that if any such breach is not corrected or cured within such sixty
(60)
day period, the Seller shall, at the Purchaser’s option and not later than
ninety (90) days after the earlier of its discovery or its receipt of notice
of
such breach, repurchase such Mortgage Loan at the Repurchase Price; provided,
however, that in the event such breach constitutes a breach of Section 3.02(uu),
then the Repurchase Price shall also include any costs and damages incurred
by
Purchaser as a result of such breach; or, with the Purchaser’s prior consent,
which consent shall not be unreasonably withheld, substitute a Mortgage Loan
as
provided below. In the event that any such breach shall involve any
representation or warranty set forth in Section 3.01, and such breach is not
cured within sixty (60) days after the earlier of either discovery by or notice
to the Seller of such breach, all Mortgage Loans shall, at the option of the
Purchaser, be repurchased by the Seller at the Repurchase Price. Any such
repurchase shall be accomplished by deposit in the Custodial Account of the
amount of the Repurchase Price, after deducting therefrom any amounts received
in respect of such repurchased Mortgage Loan and being held in the Custodial
Account for future distribution. Notwithstanding the foregoing, upon the
discovery or being notified of a breach of any representation or warranty that
would cause a Mortgage Loan to be other than a “qualified mortgage” within
Section 860G(a)(3) of the Code, the Seller shall either cure or effect a
repurchase or substitution within seventy-five (75) days after the earlier
of
discovering or being notified of such breach.
27
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this Section
3.03, the Seller may, with the Purchaser’s prior consent, which consent shall
not be unreasonably withheld, within 120 days after the Closing Date, remove
such defective Mortgage Loan from the terms of this Agreement and substitute
another mortgage loan for such defective Mortgage Loan, in lieu of repurchasing
such defective Mortgage Loan. Any substitute Mortgage Loan shall (a) have an
outstanding principal balance at the time of substitution, after deduction
of
all scheduled payments due in the month of substitution (or in the case of
a
substitution of more than one mortgage loan for a removed Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the removed Mortgage Loan (the amount of any difference, plus one month’s
interest thereon at the Mortgage Interest Rate borne by the defective Mortgage
Loan, being paid by the Seller and deemed to be a Principal Prepayment to be
deposited by the Seller in the Custodial Account), (b) have a Mortgage Interest
Rate not less than, and not more than one percentage point greater than, the
Mortgage Interest Rate of the removed Mortgage Loan, (c) have a remaining term
to stated maturity not later than, and not more than one (1) year less than,
the
remaining term to stated maturity of the removed Mortgage Loan, (d) be, in
the
reasonable determination of the Purchaser, of the same type, quality and
character (including location of the Mortgaged Property) as the removed Mortgage
Loan as if the breach had not occurred, (e) have a Loan-to-Value Ratio at
origination no greater than that of the removed Mortgage Loan, and (f) be,
in
the reasonable determination of the Purchaser, in compliance with each
representation and warranty contained in this Agreement and described in Section
3.01 and Section 3.02 as of the date of substitution.
The
Seller shall amend the Mortgage Loan Schedule to reflect the withdrawal of
the
removed Mortgage Loan from this Agreement and the substitution of such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. In the event of such a substitution, accrued interest on the substitute
Mortgage Loan for the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of the
Purchaser and accrued interest for such month on the Mortgage Loan for which
the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Seller. The principal payment on a substitute
Mortgage Loan due on the Due Date in the month of substitution shall be the
property of the Seller and the principal payment on the Mortgage Loan for which
the substitution is made due on such date shall be the property of the
Purchaser.
28
It
is
understood and agreed that the obligation of the Seller set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify Purchaser pursuant to Section 8.01, constitutes the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Seller fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a defective
Mortgage Loan to Purchaser’s reasonable satisfaction in accordance with this
Section 3.03, or to indemnify Purchaser pursuant to Section 8.01, that failure
shall, upon compliance by the Purchaser with the next to the last paragraph
of
this Section 3.03, be an Event of Default and the Purchaser shall be entitled
to
pursue all remedies available in this Agreement as a result thereof. No
provision of this paragraph shall affect the rights of the Purchaser to
terminate this Agreement for cause, as set forth in Sections 10.01 and
11.01.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the Seller
or notice thereof by the Purchaser to the Seller, (ii) failure by the Seller
to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, Purchaser may elect not to
require repurchase or permit substitution pursuant to Subsection 3.03 after
the
applicable REMIC’s “start up day” (as defined in Section 860G(a) (9) of the
Code), unless the Seller has obtained an Opinion of Counsel to the effect that
such repurchase or substitution will not (i) result in the imposition of taxes
on “prohibited transactions” of such REMIC (as defined in Section 860F of the
Code) or otherwise subject the REMIC to tax, or (ii) cause the REMIC to fail
to
qualify as a REMIC at any time.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
Section
4.01.
|
Seller
to Act as Servicer.
|
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and with Applicable
Requirements, and shall have full power and authority, acting alone, to do
or
cause to be done any and all things in connection with such servicing and
administration which the Seller may deem necessary or desirable and consistent
with the terms of this Agreement and with Applicable Requirements and exercise
the same care that it customarily employs for its own account. Except as set
forth in this Agreement, the Seller shall service the Mortgage Loans in strict
compliance with the servicing provisions of the FNMA Guides (special servicing
option), which include, but are not limited to, provisions regarding the
liquidation of Mortgage Loans, the collection of Mortgage Loan payments, the
payment of taxes, insurance and other charges, the maintenance of hazard
insurance with a Qualified Insurer, the maintenance of mortgage impairment
insurance, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of Primary
Mortgage Insurance Policies, insurance claims, the title, management and
disposition of REO Property, permitted withdrawals with respect to REO Property,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Files,
annual statements, and examination of records and facilities. In the event
of
any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and any of the servicing provisions of the FNMA
Guides, the provisions of this Agreement shall control and be binding upon
the
Purchaser and the Seller.
29
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of any such term or in
any
manner grant indulgence to any Mortgagor if in the Seller’s reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided, however, that unless the
Seller has obtained the prior written consent of the Purchaser, the Seller
shall
not permit any modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, forgive the payment of principal or interest, reduce
or increase the outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage Loan. In the
event
of any such modification which has been agreed to in writing by the Purchaser
and which permits the deferral of interest or principal payments on any Mortgage
Loan, the Seller shall, on the Business Day immediately preceding the Remittance
Date in any month in which any such principal or interest payment has been
deferred, deposit in the Custodial Account from its own funds, in accordance
with Section 4.04, the difference between (a) such month’s principal and one
month’s interest at the Mortgage Loan Remittance Rate on the unpaid principal
balance of such Mortgage Loan and (b) the amount paid by the Mortgagor. The
Seller shall be entitled to reimbursement for such advances to the same extent
as for all other advances pursuant to Section 4.05. Without limiting the
generality of the foregoing, the Seller shall continue, and is hereby authorized
and empowered, to prepare, execute and deliver, all instruments of satisfaction
or cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect
to
the Mortgaged Properties. Notwithstanding anything herein to the contrary,
the
Seller may not enter into a forbearance agreement or similar arrangement with
respect to any Mortgage Loan which runs more than 180 days after the first
delinquent Due Date. Any such agreement shall be approved by any applicable
holder of a Primary Mortgage Insurance Policy, if required.
In
servicing and administering the Mortgage Loans, the Seller shall employ
Applicable Requirements, giving due consideration to the Purchaser’s reliance on
the Seller. Unless a different time period is stated in this Agreement,
Purchaser shall be deemed to have given consent in connection with a particular
matter if Purchaser does not affirmatively grant or deny consent within five
(5)
Business Days from the date Purchaser receives a second written request for
consent for such matter from Seller as servicer.
The
Mortgage Loans may be subserviced by the Subservicer on behalf of the Seller
provided that the Subservicer is an entity that engages in the business of
originating, acquiring or servicing loans, and in either case shall be
authorized to transact business, and licensed to service mortgage loans, in
the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, and in either case shall be a FHLMC or FNMA approved mortgage
servicer in good standing, and no event has occurred, including but not limited
to a change in insurance coverage, which would make it unable to comply with
the
eligibility requirements for lenders imposed by FNMA or for seller/servicers
imposed by FHLMC, or which would require notification to FNMA or FHLMC. In
addition, each Subservicer will obtain and preserve its qualifications to do
business as a foreign corporation and its licenses to service mortgage loans,
in
each jurisdiction in which such qualifications and/or licenses are or shall
be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform or cause to be performed its duties under
the related Subservicing Agreement. The Seller may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Seller of the
Subservicer shall not release the Seller from any of its obligations hereunder
and the Seller shall remain responsible hereunder for all acts and omissions
of
the Subservicer as fully as if such acts and omissions were those of the Seller.
The Seller shall pay all fees and expenses of the Subservicer from its own
funds, and the Subservicer’s fee shall not exceed the Servicing Fee. Seller
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
30
At
the
cost and expense of the Seller, without any right of reimbursement from the
Custodial Account, the Seller shall be entitled to terminate the rights and
responsibilities of the Subservicer and arrange for any servicing
responsibilities to be performed by a successor subservicer meeting the
requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Seller, at the
Seller’s option, from electing to service the related Mortgage Loans itself. In
the event that the Seller’s responsibilities and duties under this Agreement are
terminated pursuant to Section 4.13, 8.04, 9.01, 10.01 or 10.02 and if requested
to do so by the Purchaser, the Seller shall at its own cost and expense
terminate the rights and responsibilities of the Subservicer effective as of
the
date of termination of the Seller. The Seller shall pay all fees, expenses
or
penalties necessary in order to terminate the rights and responsibilities of
the
Subservicer from the Seller’s own funds without reimbursement from the
Purchaser.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Seller and the Subservicer or any reference herein to actions taken
through the Subservicer or otherwise, the Seller shall not be relieved of its
obligations to the Purchaser and shall be obligated to the same extent and
under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans. The Seller shall be entitled to enter into an agreement
with
the Subservicer for indemnification of the Seller by the Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification. The Seller will indemnify and hold Purchaser harmless from
any
loss, liability or expense arising out of its use of a Subservicer to perform
any of its servicing duties, responsibilities and obligations
hereunder.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving the Subservicer shall be deemed to be between the
Subservicer and Seller alone, and the Purchaser shall have no obligations,
duties or liabilities with respect to the Subservicer including no obligation,
duty or liability of Purchaser to pay the Subservicer’s fees and expenses. For
purposes of distributions and advances by the Seller pursuant to this Agreement,
the Seller shall be deemed to have received a payment on a Mortgage Loan when
the Subservicer has received such payment.
|
Section
4.02.
|
Collection
of Mortgage Loan Payments.
|
31
Continuously
from the date hereof until the date each Mortgage Loan ceases to be serviced
subject to this Agreement, the Seller will proceed diligently to collect all
payments due under each Mortgage Loan when the same shall become due and payable
and shall, to the extent such procedures shall be consistent with this
Agreement, Applicable Requirements, and the terms and provisions of related
Primary Mortgage Insurance Policy, follow such collection procedures as it
follows with respect to mortgage loans comparable to the Mortgage Loans and
held
for its own account. Further, the Seller will take special care in ascertaining
and estimating annual escrow payments, and all other charges that, as provided
in the Mortgage, will become due and payable, so that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
|
Section
4.03.
|
Realization
Upon Defaulted Mortgage Loans.
|
The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, consistent with
Applicable Requirements, any Primary Mortgage Insurance Policies and the best
interest of Purchaser, to 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 4.01. Foreclosure or
comparable proceedings shall be initiated within one hundred twenty
(120) days
of
default for Mortgaged Properties for which no satisfactory arrangements can
be
made for collection of delinquent payments. The Seller shall use commercially
reasonable best efforts to realize upon defaulted Mortgage Loans in such manner
as will maximize the receipt of principal and interest by the Purchaser, taking
into account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Seller shall not be required to expend
its own funds toward the restoration of such property unless it shall determine
in its discretion (i) that such restoration will increase the proceeds of
liquidation of the related Mortgage Loan to the Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
the
Seller through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 4.05. Seller shall obtain prior
approval of Purchaser as to restoration expenses in excess of ten thousand
dollars ($10,000). The Seller shall notify the Purchaser in writing of the
commencement of foreclosure proceedings and prior to the acceptance or rejection
of any offer of reinstatement, and shall provide such information regarding
the
Mortgage Loan as the Purchaser reasonably may request. The Seller shall be
responsible for all costs and expenses incurred by it in any such proceedings
or
functions; provided, however, that it shall be entitled to reimbursement thereof
from the related property, as contemplated in Section 4.05. Notwithstanding
anything to the contrary contained herein, with respect to any Mortgage Loan
as
to which the Purchaser has received actual notice of, or has actual knowledge
of, the presence of any toxic or hazardous substance on the related Mortgaged
Property, the Purchaser may instruct Seller not to take title or possession
of
the Mortgaged Property or any other action reasonable under the circumstances.
In the event that Seller as servicer receives notice that the Mortgaged Property
is contaminated by any toxic or hazardous substance, Seller shall so notify
Purchaser.
32
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by Seller, with the consent of Purchaser
as
required pursuant to this Agreement, within three (3) years after becoming
an
REO Property, unless Seller provides to the trustee under such REMIC an Opinion
of Counsel to the effect that the holding of such REO Property subsequent to
three (3) years after its becoming REO Property, will not result in the
imposition of taxes on “prohibited transactions” as defined in Section 860F of
the Code, or cause the transaction to fail to qualify as a REMIC at any time
that certificates are outstanding. Seller shall manage, conserve, protect and
operate each such REO Property for the certificate holders solely for the
purpose of its prompt disposition and sale in a manner which does not cause
such
property to fail to qualify as “foreclosure property” within the meaning of
Section 860F(a)(2)(E) of the Code, or any “net income from foreclosure property”
which is subject to taxation under the REMIC Provisions.
Pursuant to its efforts to sell such property, the Seller shall either itself
or
through an agent selected by Seller, protect and conserve such property in
the
same manner and to such an extent as is customary in the locality where such
property is located. Additionally, Seller shall perform the tax withholding
and
reporting related to Sections 1445 and 6050J of the Code, if required by the
REMIC.
The
Purchaser shall have the right, but not the obligation, to terminate the
servicing of any Mortgage Loan, without the payment of a termination fee, as
more particularly described in Section 10.02, once such Mortgage Loan becomes
ninety (90) days or more delinquent.
|
Section
4.04.
|
Establishment
of Custodial Accounts; Deposits in Custodial
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts. The
Custodial Account shall be an Eligible Account. Funds deposited in the Custodial
Account may be drawn on in accordance with Section 4.05. The creation of any
Custodial Account shall be evidenced by a letter agreement in the form shown
in
Exhibit B hereto. The original of such letter agreement shall be furnished
to
the Purchaser on the Closing Date, and upon the request of any subsequent
purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received or made by it subsequent
to the Cut-off Date, or received by it prior to the Cut-off Date but allocable
to a period subsequent thereto, 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, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) Liquidation
Proceeds;
(iv) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Applicable
Requirements;
33
(vi) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Applicable Requirements;
(vii) Monthly
Advances;
(viii) all
proceeds of any Mortgage Loan repurchased and other amounts payable in
connection with any substituted Mortgage Loan in accordance with Section
3.03;
(ix) any
amounts required to be deposited by the Seller pursuant to Section 4.10 in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Seller’s own funds, without reimbursement
therefor;
(x) any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02; and
(xi) any
Prepayment Interest Shortfall Amount.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Section 6.01, need not be deposited by the Seller
in
the Custodial Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the Seller
and the Seller shall be entitled to retain and withdraw such interest from
the
Custodial Account pursuant to Section 4.05(iv).
|
Section
4.05.
|
Permitted
Withdrawals From the Custodial
Account.
|
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fee) of principal and/or interest respecting which any such advance was made,
it
being understood that, in the case of such reimbursement, the Seller’s right
thereto shall be prior to the rights of the Purchaser, except that, where the
Seller is required to repurchase a Mortgage Loan, pursuant to Section 3.03,
the
Seller’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to such Section and all other amounts
required to be paid to the Purchaser with respect to such Mortgage
Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds in accordance
with the relevant provisions of the FNMA Guides or as otherwise set forth in
this Agreement;
(iv) to
pay to
itself as part of its servicing compensation: (a) any interest earned on funds
in the Custodial Account (all such interest to be withdrawn monthly not later
than each Remittance Date), and (b) the Servicing Fee from that portion of
any
payment or recovery as to interest with respect to a particular Mortgage
Loan;
34
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 or Section 3.04 all amounts received thereon and not distributed
as
of the date on which the related repurchase price is determined;
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii) to
remove
funds inadvertently placed in the Custodial Account by the Seller;
and
(viii) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account.
|
Section
4.06.
|
Establishment
of Escrow Accounts; Deposits in Escrow
Accounts.
|
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. The Escrow Account shall be an Eligible Account. Funds
deposited in the Escrow Account may be drawn on by the Seller in accordance
with
Section 4.07. The creation of any Escrow Account shall be evidenced by a letter
agreement in the form shown in Exhibit C. The original of such letter agreement
shall be furnished to the Purchaser on the Closing Date, and upon request to
any
subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. The Seller shall
be
entitled to retain any interest paid on funds deposited in the Escrow Account
by
the depository institution other than interest on escrowed funds required by
law
to be paid to the Mortgagor and, to the extent required by law, the Seller
shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes without reimbursement therefor.
|
Section
4.07.
|
Permitted
Withdrawals From Escrow
Account.
|
Withdrawals
from the Escrow Account may be made by Seller only:
35
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items;
(ii) to
reimburse Seller for any Servicing Advance made by Seller with respect to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Seller, or to the Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement. As part
of its servicing duties, the Seller shall pay to the Mortgagors interest on
funds in the Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement therefor;
and
(viii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06.
|
Section
4.08.
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies; Collections
Thereunder.
|
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage insurance premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including renewal premiums and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of
the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Seller in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage or applicable law. To the extent that the Mortgage does
not provide for Escrow Payments, the Seller shall determine that any such
payments are made by the Mortgagor at the time they first become due. The Seller
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of the Mortgagor’s
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
36
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan for
which such coverage is herein required. Such coverage will be maintained until
the loan-to-value ratio of the related Mortgage Loan is reduced to 80% or less
in the case of a Mortgage Loan having a Loan-to-Value Ratio at origination
in
excess of 80%; provided, however, that for purposes hereof, the Loan-to-Value
Ratio shall be determined in accordance with applicable law if such
determination is different from the definition of Loan-to-Value Ratio provided
in this Agreement. The Seller will not cancel or refuse to renew any Primary
Mortgage Insurance Policy in effect on the Closing Date that is required to
be
kept in force under this Agreement unless a replacement Primary Mortgage
Insurance Policy for such canceled or nonrenewed policy is obtained from and
maintained with a Qualified Insurer. The Seller shall not take any action which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Seller would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Seller shall
promptly notify the insurer under the related Primary Mortgage Insurance Policy,
if any, of such assumption or substitution of liability in accordance with
the
terms of such policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the Primary
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability, the
Seller shall obtain a replacement Primary Mortgage Insurance Policy as provided
above.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Private Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Seller under any Primary Mortgage Insurance Policy
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 4.05.
|
Section
4.09.
|
Transfer
of Accounts.
|
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser, which consent will not
be
unreasonably withheld.
|
Section
4.10.
|
Maintenance
of Hazard Insurance.
|
37
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to FNMA and FHLMC and
customary in the area where the Mortgaged Property is located in an amount
which
is equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan, and (b) an amount such that the proceeds thereof
shall be sufficient to prevent the Mortgagor and/or the mortgagee from becoming
a co-insurer. In the event a hazard insurance policy shall be terminated, or
in
the event the insurer shall cease to be acceptable to FNMA or FHLMC, the Seller
shall notify the Purchaser and the related Mortgagor, and shall use its best
efforts, as permitted by applicable law, to obtain from another qualified
insurer a replacement hazard insurance policy substantially and materially
similar in all respects to the original policy. In no event, however, shall
a
Mortgage Loan be without a hazard insurance policy at any time, subject only
to
Section 4.11 hereof. If required by the Flood Disaster Protection Act of 1973,
as amended, each Mortgage Loan shall be covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration in effect with an insurance carrier acceptable to FNMA and/or
FHLMC, in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the maximum insurable
value of the improvements securing such Mortgage Loan or (iii) the maximum
amount of insurance which is available under the Flood Disaster Protection
Act
of 1973, as amended. If at any time during the term of the Mortgage Loan, the
Seller determines in accordance with applicable law and pursuant to the FNMA
Guides that a Mortgaged Property is located in a special flood hazard area
and
is not covered by flood insurance or is covered in an amount less than the
amount required by the Flood Disaster Protection Act of 1973, as amended, the
Seller shall notify the related Mortgagor that the Mortgagor must obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Seller shall immediately force place the required flood insurance on the
Mortgagor’s behalf. The Seller shall also maintain on each REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the maximum insurable value of the improvements which are a part of such
property, and, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided
above. If a Mortgage is secured by a unit in a condominium project, the Seller
shall verify that the coverage required of the owner’s association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current FNMA requirements, and secure from the owner’s
association its agreement to notify the Seller promptly of any change in the
insurance coverage or of any condemnation or casualty loss that may have a
material effect on the value of the Mortgaged Property as security. In the
event
that the Purchaser shall determine that the Mortgaged Property should be insured
against loss or damage by hazards and risks not covered by the insurance
required to be maintained by the Mortgagor pursuant to the terms of the
Mortgage, the Seller shall, at the Purchaser’s request, communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to
the
Mortgagor’s attention the desirability of protection of the Mortgaged Property.
Any amounts collected by the Seller under any such policies other than amounts
to be deposited in the Escrow Account and applied to the restoration or repair
of the Mortgaged Property or REO Property, or released to the Mortgagor in
accordance with Applicable Requirements, shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 4.05. It is understood and
agreed that no other additional insurance need be required by the Seller or
the
Mortgagor or maintained on property acquired in respect of the Mortgage Loan,
other than pursuant to this Agreement, the FNMA Guides or such applicable state
or federal laws and regulations as shall at any time be in force and as shall
require such additional insurance. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to the Seller and its successors
and/or assigns and shall provide for at least thirty (30) days prior written
notice of any cancellation, reduction in the amount or material change in
coverage to the Seller. The Seller shall not interfere with the Mortgagor’s
freedom of choice in selecting either his insurance carrier or agent, provided,
however, that the Seller shall not accept any such insurance policies from
insurance companies unless such companies are Qualified Insurers.
|
Section
4.11.
|
Maintenance
of Mortgage Impairment Insurance
Policy.
|
38
In
the
event that the Seller shall obtain and maintain a blanket policy issued by
an
insurer acceptable to FNMA and/or FHLMC insuring against hazard losses on all
of
the Mortgage Loans, then, to the extent such policy names the Seller as loss
payee, provides coverage in an amount equal to the amount required pursuant
to
Section 4.10 and otherwise complies with all other requirements of Section
4.10,
it shall conclusively be deemed to have satisfied its obligations as set forth
in Section 4.10, it being understood and agreed that such policy may contain
a
deductible clause, in which case the Seller shall, in the event that there
shall
not have been maintained on the related Mortgaged Property or REO Property
a
policy complying with Section 4.10, 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 servicer of the Mortgage Loans,
the
Seller agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of
such
policy and as otherwise deemed necessary by the Seller in accordance with
Accepted Servicing Practices. Upon request of the Purchaser, the Seller shall
cause to be delivered to the Purchaser a certified true copy of such policy
and
shall use commercially reasonable best efforts to obtain a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without thirty (30) days’ prior written notice to the
Purchaser.
|
Section
4.12.
|
Fidelity
Bond, Errors and Omissions
Insurance.
|
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting in any capacity with regard
to the Mortgage Loans to handle funds, money, documents and papers relating
to
the Mortgage Loans. The Fidelity Bond shall be in the form of the Mortgage
Banker’s Blanket Bond and shall protect and insure the Seller against losses,
including those arising out of forgery, theft, embezzlement and fraud of such
Persons. The errors and omissions insurance shall protect and insure the Seller
against losses arising out of errors and omissions and negligent acts of such
Persons. Such errors and omissions insurance shall also protect and insure
the
Seller against losses in connection with the failure to maintain any insurance
policies required pursuant to this Agreement and the release or satisfaction
of
a Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity Bond
or errors and omissions insurance shall diminish or relieve the Seller from
its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the amounts
deemed acceptable to FNMA or FHLMC. The Seller shall deliver to the Purchaser
a
certificate from the surety and the insurer as to the existence of the Fidelity
Bond and errors and omissions insurance policy and shall obtain a statement
from
the surety and the insurer that such Fidelity Bond or insurance policy shall
in
no event be terminated or materially modified without thirty (30) days’ prior
written notice to the Purchaser. The Seller shall notify the Purchaser within
five (5) Business Days of receipt of notice that such Fidelity Bond or insurance
policy will be, or has been, materially modified or terminated. The Purchaser
(or any party having the status of Purchaser hereunder) and any subsidiary
thereof and their successors or assigns as their interests may appear must
be
named as loss payees on the Fidelity Bond and as additional insured on the
errors and omissions policy. Upon request by Purchaser, Seller shall provide
Purchaser with an insurance certificate certifying coverage under this Section
4.12, and will provide an update to such certificate upon request, or upon
renewal or material modification of coverage.
|
Section
4.13.
|
Title,
Management and Disposition of REO
Property.
|
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee is not authorized or permitted to hold title to real property in the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Seller from
an
attorney duly licensed to practice law in the state where the REO Property
is
located. Any Person or Persons holding such title other than the Purchaser
shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
39
The
Seller shall notify the Purchaser in accordance with the FNMA Guides of each
acquisition of REO Property upon such acquisition, together with a copy of
the
drive by appraisal or brokers price opinion of the Mortgaged Property obtained
in connection with such acquisition, and thereafter assume the responsibility
for marketing such REO property in accordance with Applicable Requirements.
Thereafter, the Seller shall continue to provide certain administrative services
to the Purchaser relating to such REO Property as set forth in this Section
4.13.
The
fee
for such administrative services shall be $1,500 to be paid upon liquidation
of
the REO Property; provided, however, such fee shall not exceed the net
Liquidation Proceeds. No Servicing Fee shall be assessed on any REO Property
from and after the date on which it becomes an REO Property. The Seller shall
make monthly distributions on each Remittance Date to the Purchaser of the
net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in this Section 4.13 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
The
Seller shall, either itself or through an agent selected by the Seller, and
in
accordance with the FNMA Guides manage, conserve, protect and operate each
REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. The Seller
also shall maintain on each REO Property fire and hazard insurance with extended
coverage in amount which is at least equal to the maximum insurable value of
the
improvements which are a part of such property, liability insurance and, to
the
extent required and available under the Flood Disaster Protection Act of 1973,
as amended, flood insurance in the amount required above. Any costs incurred
by
the Seller in connection with maintaining such insurance shall constitute a
Servicing Advance. The Seller shall attempt to sell the REO Property (and may
temporarily rent the same) on such terms and conditions as the Seller deems
to
be in the best interest of the Purchaser. The Seller shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least monthly thereafter or
more frequently as required by the circumstances. The Seller shall make or
cause
to be made a written report of each such inspection. Such reports shall be
retained in the Mortgage File and copies thereof shall be forwarded by the
Seller to the Purchaser.
The
Seller shall use commercially reasonable best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within two (2) years after title has been taken to such REO Property, unless
the
Seller determines, and gives an appropriate notice to the Purchaser to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a longer period than one (1) year is permitted under the
foregoing sentence and is necessary to sell any REO Property, the Seller shall
report monthly to the Purchaser as to the progress being made in selling such
REO Property. No REO Property shall be marketed for less than the Appraised
Value, without the prior consent of Purchaser. No REO Property shall be sold
for
less than ninety-five percent (95%) of its Appraised Value, without the prior
consent of Purchaser. If as of the date title to any REO Property was acquired
by or on behalf of the Purchaser there were outstanding unreimbursed Servicing
Advances with respect to the REO Property, the Seller shall be entitled to
immediate reimbursement from the Purchaser for any related unreimbursed
Servicing Advances. All requests for reimbursement of Servicing Advances shall
be in accordance with the FNMA Guides. The disposition of REO Property shall
be
carried out by the Seller at such price, and upon such terms and conditions,
as
the Seller deems to be in the best interests of the Purchaser. Seller shall
provide monthly reports to Purchaser in reference to the status of the marketing
of the REO Properties. The proceeds of sale of the REO Property shall be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Seller shall reimburse itself for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance Date
immediately following the receipt of such sale proceeds, the net cash proceeds
of such sale remaining in the Custodial Account shall be distributed to the
Purchaser.
40
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser’s
sole option, terminate the Seller as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Seller
shall on the date said termination takes effect be reimbursed by withdrawal
from
the Custodial Account for any unreimbursed advances of the Seller’s funds made
pursuant to Section 5.03 and any unreimbursed Servicing Advances in each case
relating to the Mortgage Loan underlying such REO Property notwithstanding
anything to the contrary set forth in Section 4.05. In the event of any such
termination, the provisions of Section 11.01 hereof shall apply to said
termination and the transfer of servicing responsibilities with respect to
such
REO Property to the Purchaser or its designee.
|
Section
4.14.
|
Notification
of Maturity Date.
|
With
respect to each Mortgage Loan, the Seller shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
|
Section
4.15.
|
Reports
of Foreclosures and Abandonments of Mortgaged
Property.
|
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Seller shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code. The Seller shall file information reports with respect to the receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
|
Section
4.16.
|
Inspections.
|
If
any
Mortgage Loan is (i) more than sixty (60) days delinquent and the Seller has
not
contacted the Mortgagor during such period or (ii) more than one hundred twenty
(120) days delinquent in any event, the Seller immediately shall inspect the
Mortgaged Property and shall conduct subsequent inspections in accordance with
Acceptable Servicing Practices or as may be required by the primary mortgage
guaranty insurer. The Seller shall keep a written report of each such
inspection.
41
|
Section
4.17.
|
Restoration
of Mortgaged Property.
|
The
Seller need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Acceptable Servicing Practices. For claims greater than $10,000,
the Seller shall comply with the following conditions in connection with any
such release of Insurance Proceeds or Condemnation Proceeds:
(i) the
Seller shall receive satisfactory independent verification of completion of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Seller shall take all reasonable steps necessary to preserve the priority of
the
lien of the Mortgage, including, but not limited to requiring waivers with
respect to mechanics’ and materialmen’s liens;
(iii) the
Seller shall verify that the Mortgage Loan is not in default; provided, however,
that the Seller may still release such proceeds if required by applicable law;
and
(iv) pending
repairs or restoration, the Seller shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
(v) If
the
Purchaser is named as an additional loss payee, the Seller is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
|
Section
4.18.
|
Security
Measures/Compliance with Safeguarding Customer Information
Requirements.
|
The
Servicer has implemented and will maintain such security and safeguarding
measures required of the Servicer and designed to meet the objectives of the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information published in final form on February 1, 2001, 66 Fed. Reg. 8616,
and
the rules promulgated thereunder, as amended from time to time (the
"Guidelines"), including without limitation to the provision of the Servicer’s
security and safeguarding procedures to any applicable regulator and as required
pursuant to the Guidelines.
|
Section
4.19.
|
Disaster
Recovery/Business Continuity
Plan.
|
The
Servicer shall establish, maintain and upon reasonable written notification,
make available for review by the appropriate regulator, Servicer’s contingency
plans, recovery plans and risk controls to ensure the Servicer’s continued
performance under this Agreement, provided, however, that the regulator agrees
to maintain the proprietary nature of Servicer’s information. The plans must be
in place within thirty (30) calendar days after the Closing Date of this
Agreement and shall include, but not be limited to, testing, control functions,
accountability and corrective actions to be immediately implemented, if
necessary.
|
Section
4.20.
|
Privacy/Confidential
Information.
|
42
Each
party shall keep confidential and shall not divulge to any party, without the
other party’s prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary for
either party to do so in working with legal counsel, auditors, taxing
authorities or other governmental agencies. Each party shall maintain physical,
electronic and procedural safeguards to store, dispose of (if applicable) and
secure nonpublic personal information to protect it from unauthorized access,
use, disclosure, alteration, loss and destruction. The safeguards used by each
party to protect nonpublic personal information shall be no less than those
used
by such party to protect its own confidential information. Each party shall
control access to, and, to the extent reasonably possible, use of, nonpublic
personal information and, except as required by law or as otherwise may be
specifically permitted, or under § 502(e) of the Xxxxx-Xxxxx-Xxxxxx Act (P.L.
106-102) (15 U.S.C. § 6802(e)),and accompanying regulations, or by this
Agreement, permit access only to individuals who need access in connection
with
the duties to be performed under this Agreement and shall require such
individuals to maintain the confidentiality of such nonpublic personal
information. For purposes of this paragraph, the term "nonpublic
personal information"
shall
have the meanings set forth in § 509 of the Xxxxx-Xxxxx-Xxxxxx Act (P.L.
106-102) (15 U.S.C. § 6809) and implementing regulations thereof. The
restrictions set forth herein shall survive termination of this
Agreement.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
|
Section
5.01.
|
Distributions.
|
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) all amounts credited to the Custodial Account as of the close of business
on
the preceding Determination Date, net of charges against or withdrawals from
the
Custodial Account pursuant to Section 4.05, plus (ii) all Monthly Advances,
if
any, which the Seller is obligated to distribute pursuant to Section 5.03,
plus
(iii) any Prepayment Interest Shortfall Amount, provided that the Servicer’s
obligation as to payment of such amount shall be limited to the Servicing Fee
earned during the month of the distribution less (iv) any amounts attributable
to Monthly Payments collected but due on a Due Date or Dates subsequent to
the
preceding Determination Date, which amounts shall be remitted on the Remittance
Date next succeeding the Due Period for such amounts, and any Principal
Prepayments received during the month of such Remittance Date, which amounts
shall be remitted on the next succeeding Remittance Date. It is understood
that,
by operation of Section 4.04, the remittance on the first Remittance Date is
to
include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, at the Mortgage Loan Remittance Rate collected
through such Determination Date exclusive of any portion thereof allocable
to
the period prior to the Cut-off Date, with the adjustments specified in clauses
(ii), (iii) and (iv) above.
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Seller shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus one (1) percentage point, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Custodial Account by the Seller on the date such late payment
is made and shall cover the period commencing with the day following the
Business Day on which such payment was due and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Seller of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Seller.
43
The
Purchaser’s assignee will provide wiring instructions and the names, addresses
and telephone numbers of persons whom Servicer can contact to confirm receipt
of
the remittances in the Assignment and Assumption Agreement to be executed no
later than two (2) Business Days after the Closing Date. In the event the
Assignment and Assumption Agreement does not contain such information and is
not
executed within such time period, the Purchaser shall provide wiring
instructions and the names, addresses and telephone numbers of employees of
the
Purchaser whom the Seller can contact to confirm receipt of the
remittances.
|
Section
5.02.
|
Statements
to the Purchaser.
|
Not
later
than the fifth (5th) Business
Day of each month, the Servicer
shall furnish to the Purchaser, with respect to the preceding month,
a
monthly collection report, a monthly paid in full report
that
summarizes Mortgage Loans paid in full during the related Due Period and a
monthly trial balance report that provides a trial balance as of the last day
of
the month preceding such Remittance Date in electronic format agreed
upon
by the
Servicer
and the Purchaser.
Not
later
than the fifth (5th)
Business
Day of each
month,
the
Servicer
shall furnish to the Purchaser a delinquency report and a Monthly
Remittance Advice, both
a
physical form and a
mutually
agreeable
electronic format, as
to
the
remittance
on such Remittance Date and as to the period ending on the last day of the
month
preceding such Remittance Date.
The
Seller shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Seller shall provide
Purchaser with such information concerning the Mortgage Loans as is necessary
for Purchaser to prepare its federal income tax return as Purchaser may
reasonably request from time to time.
In
addition, not more than sixty (60) days after the end of each calendar year,
the
Seller shall furnish to each Person who was a Purchaser at any time during
such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
|
Section
5.03.
|
Monthly
Advances by the Seller.
|
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Seller shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Seller, whether or not deferred pursuant
to Section 4.01, of principal (due after the Cut-off Date) and interest not
allocable to the period prior to the Cut-off Date, at the Mortgage Loan
Remittance Rate, which were due on a Mortgage Loan and delinquent at the close
of business on the related Determination Date.
The
Seller’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the Remittance Date prior to the date on which
the
Mortgaged Property is liquidated (including Insurance Proceeds, REO Disposition
Proceeds or Condemnation Proceeds) with respect to the Mortgage Loan, unless
the
Seller deems such advance to be nonrecoverable. In such event, the Seller shall
deliver to the Purchaser an Officer’s Certificate of the Seller to the effect
that an officer of the Seller has reviewed the related Mortgage File and has
made the reasonable determination that any additional advances are
nonrecoverable.
44
|
Section
5.04.
|
Liquidation
Reports.
|
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
The
Seller shall also provide reports on the status of REO Property containing
such
information as Purchaser may reasonably require.
|
Section
5.05.
|
Automated
Servicing Systems.
|
On
the
fifth (5th)
day of
the succeeding month after closing, The Seller shall set up, format, maintain
and transmit to the Purchaser the Seller’s mortgage servicer file and other
electronic data storage and transmission systems related to the Mortgage Loans
(collectively, the “Servicing Systems”) in accordance with the guidelines and
requirements set forth in Exhibit J attached hereto (the “Servicer
Requirements”), and the Seller shall cooperate with Purchaser to receive data
from the Purchaser that is to be incorporated in the Servicing Systems in
accordance with the Servicer Requirements.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01.
|
Assumption
Agreements.
|
The
Seller will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided, however, that the Seller shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy, if
any.
If the Seller reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, the Seller, with the approval of the Purchaser (such
approval not to be unreasonably withheld), will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed, pursuant to which such person becomes liable under
the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant to
this Section 6.01, the Seller, with the prior consent of the Purchaser and
the
primary mortgage insurer, if any, is authorized to enter into a substitution
of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement. Purchaser
shall
be deemed to have consented to any assumption for which Purchaser was given
notification and requested to consent, but for which neither a consent nor
an
objection was given by Purchaser within two (2) Business Days of such
notification.
45
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of the FNMA Guides.
With
respect to an assumption or substitution of liability, the Mortgage Interest
Rate borne by the related Mortgage Note, the amount of the Monthly Payment
and
the maturity date may not be changed. If the credit of the proposed transferee
does not meet such underwriting criteria, the Seller diligently shall, to the
extent permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Mortgage Loan. The Seller shall notify the
Purchaser that any such substitution of liability or assumption agreement has
been completed by forwarding to the Purchaser the original of any such
substitution of liability or assumption agreement, which document shall be
added
to the related Mortgage File and shall, for all purposes, be considered a part
of such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Seller for entering
into
an assumption or substitution of liability agreement shall belong to the
Seller.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
6.01, the term “assumption” is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
|
Section
6.02.
|
Satisfaction
of Mortgages and Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser’s custodian by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 4.04
have
been or will be so deposited, of a Servicing Officer and shall request delivery
to it of the portion of the Mortgage File held by the Purchaser. The Purchaser’s
custodian shall be required no later than five (5) Business Days after receipt
of such certification and request to release or cause to be released to the
Seller, the related Mortgage Loan Documents and, upon its receipt of such
documents, the Seller shall promptly prepare and execute (pursuant to a power
of
attorney or limited officer appointment to be provided by Purchaser to Seller)
the requisite satisfaction or release. No expense incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable
to
the Custodial Account.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit within two (2)
Business Days to the Purchaser the then outstanding principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. The Seller
shall maintain the Fidelity Bond and errors and omissions insurance insuring
the
Seller against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
46
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser or its designee shall, upon request of the
Seller and delivery to the Purchaser or its designee of a servicing receipt
signed by a Servicing Officer, release the portion of the Mortgage File held
by
the Purchaser or its designee to the Seller. Such servicing receipt shall
obligate the Seller to return the related Mortgage Loan Documents to the
Purchaser or its designee when the need therefor by the Seller no longer exists,
unless the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account
or
the Mortgage File or such document has been delivered to an attorney, or to
a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure
of
the Mortgaged Property either judicially or non-judicially, and the Seller
has
delivered to the Purchaser or its designee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated, the servicing receipt shall be released by the Purchaser
or
its designee to the Seller.
|
Section
6.03.
|
Servicing
Compensation.
|
As
compensation for its services hereunder, the Seller shall be entitled to
withdraw from the Custodial Account (to the extent of interest payments
collected on the Mortgage Loans) or to retain from interest payments on the
Mortgage Loans the amounts provided for as the Seller’s Servicing Fee, subject
to payment of compensating interest on Principal Prepayments as capped by the
Servicing Fee pursuant to Section 5.01(iii). Additional servicing compensation
in the form of income and other benefits derived from escrow and custodial
accounts and assumption fees, as provided in Section 6.01, late payment charges
and other similar ancillary fees or otherwise shall be retained by the Seller
to
the extent not required to be deposited in the Custodial Account. The Seller
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
|
Section
6.04.
|
Annual
Statement as to Compliance.
|
(a) The
Seller will deliver to the Purchaser, not later than the earlier of (a) March
31
of each calendar year (other than the calendar year during which the Closing
Date occurs) or (b) with respect to any calendar year during which the
depositor’s annual report on Form 10-K is required to be filed in accordance
with the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and
the rules and regulations of the Securities and Exchange Commission (the
“Commission”), 15 calendar days before the date on which the depositor’s annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act
and the rules and regulations of the Commission (or, in each case, if such
day
is not a Business Day, the immediately preceding Business Day), an Officers'
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Seller during the preceding calendar year and of performance
under this Agreement has been made under such officers' supervision, and (ii)
to
the best of such officers' knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement throughout such year,
or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof. Copies of such statement shall be provided by the Seller to the
Purchaser upon request.
47
(b) The
Seller will deliver to the Purchaser, with respect to any Mortgage Loans that
are subject to a Securitization or other securitization transaction, not later
than the earlier of (a) March 31 of each calendar year (other than the calendar
year during which the Closing Date occurs) or (b) with respect to any calendar
year during which the depositor’s annual report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and regulations of
the
Commission, 15 calendar days before the date on which the depositor’s annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act
and the rules and regulations of the Commission (or, in each case, if such
day
is not a Business Day, the immediately preceding Business Day), an officer
of
the Servicer shall execute and deliver an Officer’s Certificate in the form
attached hereto as Exhibit H to the person who provides certification required
under the Xxxxxxxx-Xxxxx Act of 2002 in connection with such a Securitization
or
other securitization transaction for the benefit of such person and its
officers, directors and affiliates.
(c) The
Servicer shall indemnify and hold harmless the Master Servicer and the Sarbanes
Certifying Party (any such person, an “Indemnified
Party”)
from
and against any losses, damages, penalties, fines, forfeitures, reasonable
legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon a breach by the Servicer of its obligations under this Section 6.04,
or the negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Indemnified
Party, then the Servicer agrees that it shall contribute to the amount paid
or
payable by the Indemnified Party as a result of the losses, claims, damages
or
liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the
Indemnified Party on the one hand and the Servicer in the other in connection
with a breach of the Servicer’s obligations under this Section 6.04, or the
Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
(d) It
is
acknowledged and agreed that each Master Servicer and the Sarbanes Certifying
Party shall be an express third party beneficiary of the provisions of this
Section 6.04, and shall be entitled independently to enforce the provisions
of
this Section 6.04 with respect to any obligations owed to such entity as if
it
were a direct party to this Agreement.
| Section 6.05. |
Annual
Independent Certified Public Accountants’
Servicing Report.
|
On
the
earlier of (a) March 31 or (b) using best efforts, within 15 calendar days
prior
to the date on which the Purchaser’s annual report on Form 10-K is required to
be filed, the Seller will deliver to the Purchaser at Seller’s expense and shall
cause a firm of independent public accountants, which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the
Purchaser to the effect that such firm has examined certain documents and
records relating to the Seller’s servicing of mortgage loans of the same type as
the Mortgage Loans pursuant to servicing agreements substantially similar to
this Agreement, which agreements may include this Agreement, and that, on the
basis of such an examination, conducted substantially in accordance with the
uniform single attestation program for mortgage bankers, such firm is of the
opinion that the Seller’s servicing has been conducted in compliance with the
agreements examined pursuant to this Section 6.05, except for (i) such
exceptions as such firm shall believe to be immaterial, and (ii) such other
exceptions as shall be set forth in such statement. Copies of such statement
shall be provided by the Seller to the Purchaser. In addition, on an annual
basis, upon Purchaser’s request, Seller shall provide Purchaser with copies of
its audited financial statements upon execution by Purchaser of an agreement
to
keep confidential the contents of such financial statements.
48
|
Section
6.06.
|
Purchaser’s
Right to Examine Seller
Records.
|
The
Purchaser, or its designee, shall have the right to examine and audit upon
reasonable notice to the Seller, during business hours or at such other times
as
might be reasonable under applicable circumstances, any and all of the books,
records, documentation or other information of the Seller, or held by another
for the Seller or on its behalf or otherwise, which relates to the performance
or observance by the Seller of the terms, covenants or conditions of this
Agreement.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to the OCC and other comparable regulatory
authorities supervising the Purchaser and other similar entities, access to
any
documentation regarding the Mortgage Loans in the possession of the Seller
which
may be required by any applicable regulations. Such access shall be afforded
without charge, upon reasonable request, during normal business hours and at
the
offices of the Seller, and in accordance with the federal government, the OCC
and other comparable regulatory authorities supervising the Purchaser, or any
other similar regulations.
|
Section
6.07.
|
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 Seller shall not take any action
or fail to take 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 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) unless the Seller has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such REMIC status or result in the
imposition of any such tax.
ARTICLE
VII
SELLER
TO COOPERATE
|
Section
7.01.
|
Seller
Shall Provide Information as Reasonably
Required.
|
Upon
reasonable request from the Purchase, the Seller shall use its best efforts
to
deliver no later than sixty (60) day after such request any Servicing File
or
document therein, or copies or images thereof, to the Purchaser at the direction
of the Purchaser. The Purchaser shall return any original Servicing File or
document therein delivered pursuant to this Section no later than ten (10)
days
after receipt thereof.
The
Seller shall furnish to the Purchaser during the term of this Agreement, such
periodic, special or other reports, information or documentation, whether or
not
provided for herein, as shall be necessary, reasonable or appropriate in respect
to the Purchaser, or otherwise in respect to the Mortgage Loans and the
performance of the Seller under this Agreement, including any reports,
information or documentation reasonably required to comply with any regulations
regarding any supervisory agents or examiners of the Purchaser, all such reports
or information to be as provided by and in accordance with such applicable
instructions and directions as the Purchaser may reasonably request in relation
to this Agreement or the performance of the Seller under this Agreement. The
Seller agrees to execute and deliver all such instruments and take all such
action as the Purchaser, from time to time, may reasonably request in order
to
effectuate the purpose and to carry out the terms of this
Agreement.
49
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Seller for the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of the
last two (2) fiscal years covered by any Consolidated Statement of Operations.
If it has not already done so, upon request, the Seller shall furnish promptly
to the Purchaser or a prospective purchaser copies of the statements specified
above; provided, however, that prior to furnishing such statements or
information to any prospective purchaser, the Seller may require such
prospective purchaser to execute a confidentiality agreement in a form
satisfactory to the Seller.
The
Seller shall make reasonably available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions and to permit any prospective purchaser to inspect the
Seller’s servicing facilities for the purpose of satisfying such prospective
purchaser that the Seller has the ability to service the Mortgage Loans as
provided in this Agreement.
|
Section
7.02.
|
Cooperation
with Third-party Service
Providers.
|
The
Seller shall cooperate with the Purchaser in servicing the Mortgage Loans in
accordance with the usual and customary requirements of any credit enhancement,
risk management and other service providers and shall otherwise cooperate with
the Purchaser in connection with such third-party service providers and the
provision of third-party services; provided, however,
that
such requirements are reasonably acceptable to the Seller and pose no greater
risk, obligation or expense to the Seller than otherwise set forth in this
Agreement. Any additional costs and/or expenses will be paid by the requesting
party.
ARTICLE
VIII
THE
SELLER
|
Section
8.01.
|
Indemnification;
Third Party Claims.
|
The
Seller agrees to indemnify the Purchaser and hold it harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of the Seller to observe
and perform its duties, obligations, covenants, and agreements to service the
Mortgage Loans in strict compliance with the terms of this Agreement; provided
that Seller shall not be required to indemnify Purchaser with respect to any
amounts otherwise paid to the Purchaser with respect to the Repurchase Price,
as
provided in Section 3.03. The Seller agrees to indemnify the Purchaser and
hold
it harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Purchaser may sustain in any way related to the breach
of
a representation or warranty set forth in Sections 3.01 or 3.02 of this
Agreement; provided that Seller shall not be required to indemnify Purchaser
with respect to any amounts otherwise paid to the Purchaser with respect to
the
Repurchase Price, as provided in Section 3.03. The Seller shall immediately
notify the Purchaser if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of
the
Purchaser) 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 Purchaser in respect
of such claim. The Seller shall follow any written instructions received from
the Purchaser in connection with such claim. The Purchaser shall promptly
reimburse the Seller for all amounts advanced by it pursuant to the two
preceding sentences except when the claim relates to the failure of the Seller
to service and administer the Mortgages in strict compliance with the terms
of
this Agreement, the breach of representation or warranty set forth in Sections
3.01 or 3.02, or the negligence, bad faith or willful misconduct of Seller.
The
provisions of this Section 8.01 shall survive termination of this
Agreement.
50
|
Section
8.02.
|
Merger
or Consolidation of the Seller.
|
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, 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 Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller whether
or
not related to loan servicing, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person shall be an
institution (i) having a GAAP net worth of not less than $25,000,000, (ii)
the
deposits of which are insured by the FDIC, SAIF and/or BIF, or which is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien mortgage loans, and (iii) who is a FNMA or FHLMC approved
seller/service in good standing. Furthermore, in the event the Seller transfers
or otherwise disposes of all or substantially all of its assets to an affiliate
of the Seller, such affiliate shall satisfy the condition above, and shall
also
be fully liable to the Purchaser for all of the Seller’s obligations and
liabilities.
|
Section
8.03.
|
Limitation
on Liability of the Seller and
Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser 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 made in good faith; provided, however, that this provision shall
not
protect the Seller or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of negligence, bad faith
or
willful misconduct, or any breach of the terms and conditions of this Agreement.
The Seller and any officer, employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
the Purchaser respecting any matters arising hereunder. The Seller shall not
be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its reasonable opinion may involve it in any
expenses or liability; provided, however, that the Seller may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the reasonable legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser will be liable, and the Seller shall be entitled to
be
reimbursed therefor from the Purchaser upon written demand unless any such
costs
result from a breach of the Seller’s representations and warranties made herein
or its failure to perform its obligations in strict compliance with this
Agreement.
51
|
Section
8.04.
|
Seller
Not to Assign or Resign.
|
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its duties hereunder are no longer permissible
under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 11.01.
|
Section
8.05.
|
No
Transfer of Servicing.
|
With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
the Seller acknowledges that the Purchaser has acted in reliance upon the
Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section, the Seller shall not either assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the
Purchaser.
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Seller either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without (i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement as set forth in Section 10.02, without any payment of any penalty
or
damages and without any liability whatsoever to the Seller (other than with
respect to accrued but unpaid Servicing Advances remaining unpaid) or any third
party.
ARTICLE
IX
DEFAULT
|
Section
9.01.
|
Events
of Default.
|
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
52
(i) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
two
(2) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller by the
Purchaser or the date upon which such non-payment is discovered by Seller;
or
(ii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement which continues unremedied for a period of thirty (30) days (except
that such number of days shall be fifteen (15) in the case of a failure to
pay
any premium for any insurance policy required to be maintained under this
Agreement) after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Seller by or on behalf of
the
Purchaser; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, 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 Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
(iv) the
Seller shall consent to the appointment of a conservator or receiver or
liquidation in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(v) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) Seller
ceases to be approved by both FNMA and FHLMC as a mortgage loan seller and
servicer for more than twenty (20) days;
or
(vii) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof; or
(viii) the
Seller ceases to be (a) licensed to service first lien residential mortgage
loans in each jurisdiction in which a Mortgaged Property is located and such
licensing is required, or (b) qualified to transact business in any jurisdiction
where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Seller’s ability to
perform its obligations hereunder; or
(ix) the
Seller fails to meet the eligibility criteria set forth in the penultimate
sentence of Section 8.02;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have under Sections 3.03 and 8.01 and at
law
or equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Seller under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof without compensating
the
Seller for the same. On or after the receipt by the Seller of such written
notice, all authority and power of the Seller under this Agreement, whether
with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the
successor appointed pursuant to Section 11.01. Upon written request from the
Purchaser, the Seller shall prepare, execute and deliver, any and all documents
and other instruments, place in such successor’s possession all Mortgage Files,
and do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Seller’s sole expense. The Seller agrees to cooperate with the
Purchaser and such successor in effecting the termination of the Seller’s
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Seller to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans or any REO
Property.
53
|
Section
9.02.
|
Waiver
of Defaults.
|
The
Purchaser may waive only by written notice any default by the Seller 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 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 in writing.
ARTICLE
X
TERMINATION
|
Section
10.01.
|
Termination.
|
The
respective obligations and responsibilities of the Seller shall terminate upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Seller and the Purchaser in writing; or (iii) termination with
or
without cause under the terms of this Agreement.
|
Section
10.02.
|
Termination
Without Cause.
|
The
Purchaser may, at its sole option, terminate any rights the Seller may have
hereunder, without cause, upon written notice. Any such notice of termination
shall be in writing and delivered to the Seller as provided in Section 11.05
of
this Agreement. In the event of such termination, the Purchaser agrees to pay
as
liquidated damages, a sum equal to a percentage of the aggregate unpaid
principal balance of the Mortgage Loans as of the termination date, as follows:
two and one half percent (2.5%) for any Mortgage Loans having Mortgaged Property
in the states of New York, New Jersey or Connecticut; two percent (2.0%) for
all
remaining Mortgage Loans. Notwithstanding the foregoing, there shall be no
fee
or liquidated damages for termination pursuant to this Section with respect
to
any Mortgage Loans ninety (90) days or more delinquent.
54
ARTICLE
XI
RECONSTITUTION
OF MORTGAGE LOANS
|
Section
11.01.
|
Reconstitution
of Mortgage Loans.
|
(a) The
Seller acknowledges and the Purchaser agrees that with respect to some or all
of
the Mortgage Loans, the Purchaser may effect any of the following:
(i) one
or
more sales of the Mortgage Loans as whole loan transfers (each, a “Whole Loan
Transfer”); and/or
(ii) one
or
more Transfers;
and/or
(iii) one
or
more sales of the Mortgage Loans as agency transfers (each, an “Agency
Transfer”).
(b) With
respect to each Whole Loan Transfer, Agency Transfer or Pass-Through Transfer,
as the case may be, the Seller agrees:
(i) to
cooperate fully with the Purchaser and any prospective purchaser with respect
to
all reasonable requests and reasonable due diligence procedures including
participating in meetings with rating agencies, bond insurers and such other
parties as the Purchaser shall designate and participating in meetings with
prospective purchasers of the Mortgage Loans or interests therein and providing
information reasonably requested by such purchasers;
(ii) to
execute all agreements required to be executed by the Seller in connection
with
such Whole Loan Transfer, Agency Transfer or Pass-Through Transfer provided
that
such agreements will not contain any greater obligations on the part of Seller
as are contained in this Agreement and Seller is given an opportunity to review
and reasonably negotiate in good faith the content of such
documents;
(iii) to
deliver to the Purchaser and to any Person designated by the Purchaser for
inclusion in any prospectus or other offering material such publicly available
information regarding the Seller, its underwriting standards, its financial
condition and its mortgage loan delinquency, foreclosure experience and any
additional information reasonably requested by the Purchaser, and to indemnify
the Purchaser and its affiliates for material misstatements contained in such
information, and to deliver such statements and audit letters of reputable,
certified public accountants pertaining to information provided by the Seller
as
shall be reasonably requested by the Purchaser;
(iv) to
deliver to the Purchaser, and to any Person designated by the Purchaser, such
in-house opinions of counsel in a form reasonably acceptable to the Purchaser
as
are customarily delivered by servicers and reasonably determined by the
Purchaser to be necessary in connection with Whole Loan Transfers, Agency
Transfers or Pass-Through Transfers;
(v) to
make
all representations and warranties with respect to the Mortgage Loans as of
the
Closing Date and with respect to the Seller itself as of the closing date of
each Whole Loan Transfer, Agency Transfer or Pass-Through Transfer;
(vi) to
make
representations and warranties (1) that the Seller has serviced the Mortgage
Loans in accordance with the terms of this Agreement, provided accurate
statements to the Purchaser pursuant to Section 5.02 of this Agreement, and
otherwise complied with all covenants and obligations hereunder and (2) that
the
Seller has taken no action nor omitted to take any required action the omission
of which would have the effect of impairing any mortgage insurance or guarantee
on the Mortgage Loans; and
55
(vii) the
third
party costs incurred by Seller in connection with compliance with this Section
11.01, including but not limited to the costs of opinions of outside special
counsel that may be required for a Whole Loan Transfer, Agency Transfer or
Pass-Through Transfer, shall be the responsibility of the
Purchaser.
All
Mortgage Loans not sold or transferred pursuant to Whole Loan Transfers, Agency
Transfers or Pass-Through Transfers shall remain subject to this Agreement
and
shall continue to be serviced in accordance with the terms of this Agreement
and
with respect thereto this Agreement shall remain in full force and
effect.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01.
|
Successor
to the Seller.
|
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Sections 4.13, 8.04, 9.01, 10.01 or 10.02, the Purchaser shall
(i)
succeed to and assume all of the Seller’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.02 hereof and which shall succeed to
all
rights and assume all of the responsibilities, duties and liabilities of the
Seller under this Agreement prior to the termination of Seller’s
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Purchaser may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as
the
Purchaser and such successor shall agree. In the event that the Seller’s duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to any of the aforementioned Sections, the Seller shall discharge
such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of Seller pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no
event relieve the Seller of the representations and warranties made pursuant
to
Sections 3.01, 3.02 and 3.03 and the remedies available to the Purchaser
thereunder and under Section 8.01, it being understood and agreed that the
provisions of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable to
the
Seller notwithstanding any such resignation or termination of the Seller, or
the
termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Seller or this Agreement pursuant to Section 4.13, 8.04,
9.01, 10.01, or 10.02 shall not affect any claims that the Purchaser may have
against the Seller arising prior to any such termination or
resignation.
56
The
Seller shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Seller. The successor shall make arrangements as it may
deem
appropriate to reimburse the Seller for unrecovered Servicing Advances which
the
successor retains hereunder and which would otherwise have been recovered by
the
Seller pursuant to this Agreement but for the appointment of the successor
servicer.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
|
Section
12.02.
|
Amendment.
|
This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the Seller and the Purchaser.
|
Section
12.03.
|
Recordation
of Agreement.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Seller at the Seller’s expense
on direction of the Purchaser accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interest of the
Purchaser or is necessary for the administration or servicing of the Mortgage
Loans.
|
Section
12.04.
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York except to the extent preempted by federal law, without giving
effect to choice of law principles. The obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
Each
of
the Seller and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect or any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Seller or the Purchaser. This provision is a
material inducement for the Purchaser to enter into this Agreement.
|
Section
12.05.
|
Notices.
|
57
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
| (i) |
if
to the Seller:
Chase
Home
Finance LLC
000
Xxxx Xxxxxxxxx
Xxxxxxxxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx
With
copy to:
General
Counsel
Chase
Home
Finance LLC
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
|
| (ii) |
if
to
the Purchaser:
Bank
of America, National Association
Hearst
Tower
NCI-027-21-04
000
Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Managing Director
|
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
|
Section
12.06.
|
Severability
of Provisions.
|
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
58
|
Section
12.07.
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
|
Section
12.08.
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to “Articles,” “Sections,” Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof ,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(vi) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(vii) headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
|
Section
12.10.
|
Confidentiality
of Information.
|
59
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Each party agrees to keep all non-public
information regarding the other party strictly confidential, and to use all
such
information solely in order to effectuate the purpose of the Agreement, provided
that each party may provide confidential information to its employees, agents
and affiliates who have a need to know such information in order to effectuate
the transaction, provided further that such information is identified as
confidential non-public information. In addition, confidential information
may
be provided to a regulatory authority with supervisory power over Purchaser,
provided such information is identified as confidential non-public
information.
Notwithstanding
any other express or implied agreement to the contrary, the parties agree and
acknowledge that each of them and each of their employees, representatives,
and
other agents may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transaction and all materials
of any kind (including opinions or other tax analyses) that are provided to
any
of them relating to such tax treatment and tax structure, except to the extent
that confidentiality is reasonably necessary to comply with U.S. federal or
state securities laws. For purposes of this paragraph, the terms "tax treatment"
and "tax structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
|
Section
12.11.
|
Recordation
of Assignments of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such initial recordation from the Seller
to the Purchaser or the Purchaser’s designee to be effected at the Seller’s
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option.
|
Section
12.12.
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Seller hereof, to
assign, in whole or in part, its interest under this Agreement with respect
to
some or all of the Mortgage Loans, and designate any person to exercise any
rights of the Purchaser hereunder, by executing an Assignment and Assumption
Agreement substantially in the form of Exhibit D hereto and the assignee or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. In no event shall Purchaser sell a partial
interest in any Mortgage Loan without the written consent of Seller, which
consent shall not be unreasonably denied. All references to the Purchaser in
this Agreement shall be deemed to include its assignee or designee. However,
in
no event shall there be more than four (4) Persons under the three
Reconstitution Agreements (i.e., Pass-Through Transfer, Whole Loan Transfer
and
Agency Transfer) at any given time having the status of “Purchaser” under such
agreements.
|
Section
12.13.
|
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 Seller shall
be
rendered as an independent contractor and not as agent for
Purchaser.
60
|
Section
12.14.
|
Execution;
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 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns.
|
Section
12.15.
|
Entire
Agreement.
|
The
Seller acknowledges that no representations, agreements or promises were made
to
the Seller by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained herein. This
Agreement sets forth the entire understanding between the parties hereto and
shall be binding upon all successors of both parties. In the event of any
inconsistency between the Purchase Price and Terms Letter and this Agreement,
this Agreement shall control.
|
Section
12.16.
|
No
Solicitation.
|
From
and
after the Closing Date, the Seller agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
or by
any independent contractors on the Seller’s behalf, to personally, by telephone
or mail, solicit the Mortgagor under any Mortgage Loan to refinance the Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Seller or any affiliate of the Seller which are directed
to
the general public at large, or segments thereof, provided that no segment
shall
consist primarily of the Mortgage Loans, including, without limitation, mass
mailing based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation under this Section
12.16. This Section 12.16 shall not be deemed to preclude the Seller or any
of
its affiliates from soliciting any Mortgagor for any other financial products
or
services. In addition, Seller shall use its commercially reasonable best efforts
to prevent the sale of the name of any Mortgagor to any Person who is not an
affiliate of Seller and who Seller knows will solicit the Mortgagor for
refinance.
|
Section
12.17.
|
Further
Agreements.
|
The
Purchaser and the Seller each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
|
Section
12.18.
|
Closing.
|
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
Closing Date. The closing shall be either: by telephone, confirmed by letter
or
wire as the parties shall agree, or conducted in person, at such place as the
parties shall agree.
The
closing for the Mortgage Loans to be purchased on the Closing Date shall be
subject to each of the following conditions:
61
(a) at
least
two (2) Business Days prior to the Closing Date, the Seller shall deliver to
the
Purchaser a magnetic diskette, or transmit by modem, a listing on a loan-level
basis of the information contained in the Mortgage Loan Schedule;
(b) all
of
the representations and warranties of the Seller under this Agreement shall
be
materially true and correct as of the Closing Date and no event shall have
occurred which, with notice or the passage of time, would constitute a material
default under this Agreement;
(c) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents more particularly described in the Purchase
Price and Terms Letter, in such forms as are agreed upon and acceptable to
the
Purchaser, duly executed by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(d) the
Seller shall have delivered and released to the Purchaser (or its designee)
on
or prior to the Closing Date all documents required pursuant to the terms of
this Agreement; and
(e) all
other
terms and conditions of this Agreement and the Purchase Price and Terms Letter
shall have been materially complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
Closing Date the Purchase Price, plus accrued interest pursuant to Section
2.02
of this Agreement, by wire transfer of immediately available funds to the
account designated by the Seller.
|
Section
12.19.
|
Costs.
|
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. The Seller shall pay for the physical delivery of
the
Mortgage Loan Documents to a location designated by the Purchaser, and all
the
costs and expenses incurred in connection with the transfer and delivery of
the
Mortgage Loans, including fees for title policy endorsements and continuations,
if required.
[SIGNATURES
ON FOLLOWING PAGE]
62
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
BANK
OF AMERICA, NATIONAL ASSOCIATION
Purchaser
|
||
| |
|
|
| By: | ||
|
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|
|
|
Name:
|
||
|
|
|
|
|
Title:
|
||
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||
| Taxpayer ID Number: | ||
|
|
||
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CHASE
HOME
FINANCE LLC
Seller
and Servicer
|
||
| |
|
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| By: | ||
|
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||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
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| Title: |
Vice President
|
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63
EXHIBIT
A
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Mortgage
Loan Purchase, Warranties and Servicing Agreement.
1.
The
original Mortgage Note endorsed “Pay to the order of __________________, without
recourse,” and signed in the name of the Seller by an authorized officer, with
all intervening endorsements showing a complete chain of title from the
originator to the Seller. If the Mortgage Loan was acquired by the Seller in
a
merger, the endorsement must be by “[Seller], successor by merger to the [name
of predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the endorsement must be by “[Seller]
formerly known as [previous name]”. With respect to no more than 2% of the
unpaid principal balance of the Mortgage Loans as of the Cut-off Date, in the
event that the original Mortgage Note is lost, a lost note affidavit may be
provided.
2.
The
original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such Mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the Seller, of
the
original Mortgage.
3.
The
original or certified to be true copy, certified by the Seller, of the Primary
Mortgage Insurance Policy, if required.
4. The
original Assignment, from the Seller (or its designee MERS) to
_______________________, or in accordance with Purchaser’s instructions, which
assignment shall, but for any blanks requested by Purchaser, be in form and
substance acceptable for recording, or a copy certified by Seller as a true
and
correct copy of the original Assignment which has been sent for recordation.
If
the Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment must be by “[Seller] formerly known as
[previous name]”.
5.
With
respect to Mortgage Loans that are not Co-op Loans, the original policy of
title
insurance, including riders and endorsements thereto, or if the policy has
not
yet been issued, a written commitment or interim binder or preliminary report
of
title issued by the title insurance or escrow company.
6.
Originals
of all recorded intervening Assignments, or copies thereof, certified by the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Seller of the original Assignment.
Exhibit
A-1
7.
Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Seller, of such original
document.
8.
If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
9.
With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment of
such Co-op Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment thereof by
Seller; (ii) the stock certificate together with an undated stock power relating
to such stock certificate executed in blank; (iii) the recognition agreement
in
substantially the same form as standard “AZTECH” form; (iv) copies of the
financing statement filed by the originator as secured party and, if applicable,
a filed UCC-3 Assignment of the subject security interest showing a complete
chain of title, together with an executed UCC-3 Assignment of such security
interest by the Seller in a form sufficient for filing.
10.
Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
11.
Residential
loan application.
12.
Uniform
underwriter and transmittal summary (FNMA Form 1008) or reasonable
equivalent.
13.
Credit
report on the mortgagor.
14.
Business
credit report, if applicable.
15.
Residential
appraisal report and attachments thereto.
16.
The
original of any guarantee executed in connection with the Mortgage
Note.
17.
Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s underwriting
guidelines.
18.
Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Seller’s underwriting guidelines.
Exhibit
A-2
19.
Photograph
of the Mortgaged Property (may be part of appraisal).
20.
Survey
of
the Mortgaged Property, if any.
21.
Sales
contract, if applicable.
22.
If
available, termite report, structural engineer’s report, water portability and
septic certification.
23.
Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
Notwithstanding
anything to the contrary herein, Seller may provide one certificate for all
of
the Mortgage Loans indicating that the documents were delivered for recording.
Exhibit
A-3
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
| To: |
JPMorgan
Chase Bank,
National Association
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
(the
“Depository”)
|
As
“Seller” under the Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated as of January
1,
2005,
Whole
Loan Series 2005
WL-B
(the
“Agreement”), we hereby authorize and request you to establish an account, as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
“Chase Home
Finance LLC
In Trust
For Bank of America, National Association owner of various whole loan series
P&I”. All deposits in the account shall be subject to withdrawal therefrom
by order signed by the Seller. This letter is submitted to you in duplicate.
Please execute and return one original to us.
CHASE
HOME
FINANCE LLC
By:
Name:
Title:
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ________________,
at the
office of the depository indicated above, and agrees to honor withdrawals on
such account as provided above.
JPMORGAN
CHASE BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
Exhibit
B-1
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
| To: |
JPMorgan
Chase Bank,
National Association
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
(the
“Depository”)
|
As
“Seller” under the Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated as of January
1,
2005,
Whole
Loan Series 2005
WL-B
the
“Agreement”), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 4.06 of the Agreement, to be designated
as
“Chase Home
Finance LLC
In Trust
For Bank of America, National Association owner of various whole loan series
and
various mortgagors T&I”. All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. This letter is submitted
to
you in duplicate. Please execute and return one original to us.
|
CHASE
HOME
FINANCE LLC
By:
Name:
Title:
|
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ________________,
at the
office of the depository indicated above, and agrees to honor withdrawals on
such account as provided above.
|
JPMORGAN
CHASE BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
|
Exhibit
C-1
EXHIBIT
D
FORM
OF
ASSIGNMENT AND ASSUMPTION
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated _______________, ______, between
_________________________________________, a _______________ corporation
(“Assignor”), and _______________________________, a __________________
corporation (“Assignee”):
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.
The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those certain
Mortgage Loans listed on Exhibit A attached hereto (the “Mortgage Loans”), (b)
that certain Mortgage Loan Purchase, Warranties and Servicing Agreement, Whole
Loan Series 2005
WL-B
(the
“Purchase, Warranties and Servicing Agreement”), dated as of January
1,
2005,
by and
between Bank of America, National Association, Purchaser and Chase Home
Finance LLC,
Seller
and Servicer (collectively, the “Company”), with respect to the Mortgage Loans
and (c) the certain Custody Agreement (the “Custody Agreement”), dated as of
______, by and between ____________ as Owner and _________ as
custodian.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase, Warranties
and Servicing Agreement which are not the Mortgage Loans set forth on Exhibit
A
attached hereto and are not the subject of this Assignment and Assumption
Agreement.
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 the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b.
The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller or the Servicer with
respect to the Purchase, Warranties and Servicing Agreement or the Mortgage
Loans;
c.
The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase, Warranties and Servicing
Agreement, the Custody Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Purchase,
Warranties and 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 or defaults under, the
Purchase, Warranties and Servicing Agreement, the Custody Agreement or the
Mortgage Loans; and
Exhibit
D-1
d.
Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security 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 or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security 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 “1933 Act”) or which would render
the disposition of the Mortgage Loans a violation of Section 5 of the 1933
Act
or require registration pursuant thereto.
3. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Company that:
a.
The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
b.
The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment and Assumption Agreement, and to consummate the
transactions set forth herein. The execution, delivery and performance of the
Assignee of this Assignment and Assumption Agreement, and the consummation
by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Assignee. This Assignment and Assumption
Agreement has been duly executed and delivered by the Assignee and constitutes
the valid and legally binding obligation of the Assignee enforceable against
the
Assignee in accordance with its respective terms;
c.
To
the
best of Assignee’s knowledge, no material consent, approval, order or
authorization of, or declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Assignee in connection with
the
execution, delivery or performance by the Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions contemplated
hereby;
d.
The
Assignee agrees to be bound, as Purchaser and Owner (as applicable), by all
of
the terms, covenants and conditions of the Purchase, Warranties and Servicing
Agreement, the Custody Agreement and the Mortgage Loans, 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 Purchaser or Owner thereunder,
with respect to the Mortgage Loans;
e.
The
Assignee understands that the Mortgage Loans have not been registered under
the
1933 Act or the securities laws of any state;
f.
The
purchase price being paid by the Assignee for the Mortgage Loans is in excess
of
$250,000 and will be paid by cash remittance of the full purchase price within
sixty (60) days of the sale;
g.
The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person;
Exhibit
D-2
h.
The
Assignee considers itself a substantial, sophisticated institutional investor
having such knowledge in financial and business matters that it is capable
of
evaluating the merits and the risks of investment in the Mortgage
Loans;
i. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
j.
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 or any other similar security to, or solicited any offer to buy or
accepted a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security with, any person in any manner,
or
made any general solicitation by means of general advertising within the meaning
of Rule 502(c) of Regulation D promulgated under the 1933 Act or in any other
manner, or taken any other action which would constitute a distribution of
the
Mortgage Loans under the 1933 Act or which would render the disposition of
the
Mortgage Loans a violation of Section 5 of the 1933 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;
and
k. Either:
(1) the Assignee is not an employee benefit plan (“Plan”) within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) or a plan (also “Plan”) within the meaning of section 4975(e)(1) of
the Internal Revenue Code of 1986 (“Code”), and the Assignee is not directly or
indirectly purchasing the Mortgage Loans on behalf of, investment manager of,
as
named fiduciary of, as trustee of, or with assets of, a Plan; or (2) the
Assignee’s purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
l.
The
Assignee’s address for purpose of all notices and correspondence related to the
Mortgage Loans, the Purchase, Warranties and Servicing Agreement and this
Assignment and Assumption Agreement is:
|
Attention:
|
m.
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Purchase, Warranties and
Servicing Agreement is:
|
For
the account
of:
ABA#:
A/C#:
A/C Name:
Taxpayer
ID#:
|
Exhibit
D-3
n.
The
Assignor’s address for purposes of all notices and correspondence related to the
Mortgage Loans, the Purchase, Warranties and Servicing Agreement and this
Assignment and Assumption Agreement is:
|
Attention:
|
4. The
Assignor represents and warrants to the Assignee that (i) attached hereto as
Exhibit
B
is a
true, accurate and complete copy of each of the Purchase, Warranties and
Servicing Agreement, the Custody Agreement and all amendments and modifications,
if any, thereto, (ii) neither the Purchase, Warranties and Servicing Agreement
nor the Custody Agreement has been amended or modified in any respect, except
as
set forth in this Assignment and Assumption Agreement and (iii) no notice of
termination has been given to the Company under the Purchase, Warranties and
Servicing Agreement.
Exhibit
D-4
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 |
| By: | By: | |||
| Its: |
Taxpayer
Identification Number:
By
signing the acknowledgment below, the Company (1) represents and warrants that
through the date hereof the Company has serviced the Mortgage Loans in
accordance with the terms of the Purchase, Warranties and Servicing Agreement
and (2) acknowledges and agrees that from and after the date hereof, the Company
shall (i) note the transfer of the Mortgage Loans to the Assignee in its books
and records, (ii) recognize the Assignee as the owner of the Mortgage Loans
and
(iii) service the Mortgage Loans for the benefit of the Assignee pursuant to
the
Purchase, Warranties and Servicing Agreement, the terms of which are
incorporated herein by reference, it being the intention of the Assignor, the
Company and the Assignee that the Purchase, Warranties and Servicing Agreement
shall be binding upon and inure to the benefit of the Company and the Assignee
and their respective successors and assigns.
Acknowledged:
Chase
Home
Finance LLC,
Seller
and Servicer
| By: | ||||
| Its: |
Exhibit
D-5
EXHIBIT
A
to Assignment and Assumption Agreement
THE
MORTGAGE LOANS
Exhibit
D-6
EXHIBIT
B
to Assignment and Assumption Agreement
MORTGAGE
LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT AND
CUSTODY
AGREEMENT
Exhibit
D-7
EXHIBIT
E
POOL
STATISTICS
Exhibit
E-1
EXHIBIT
F
MORTGAGE
LOAN SCHEDULE
Exhibit
F-1
EXHIBIT
G
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
| RE: Mortgage Loan #: | |
| BORROWER: | |
| PROPERTY: |
Pursuant
to a Mortgage Loan Purchase, Warranties and Servicing Agreement (the
“Agreement”) dated as of January
1,
2005,
between
Chase Home
Finance LLC
(the
“Servicer”) and Bank of America, National Association (the “Purchaser”), the
undersigned hereby certifies that he or she is an officer of the Servicer
requesting release of the documents for the reason specified below. The
undersigned further certifies that:
(Check
one of the items below)
_____ On
_________________, the above captioned mortgage loan was paid in full or that
the Seller has been notified that payment in full has been or will be escrowed.
The Servicer hereby certifies that all amounts with respect to this loan which
are required under the Agreement have been or will be deposited in the Custodial
Account as required.
_____ The
above
captioned loan is being repurchased pursuant to the terms of the Agreement.
The
Servicer hereby certifies that the repurchase price has been credited to the
Custodial Account as required under the Agreement.
_____ The
above
captioned loan is being placed in foreclosure and the original documents are
required to proceed with the foreclosure action. The Servicer hereby certifies
that the documents will be returned to the Purchaser in the event of
reinstatement.
_____ Other
(explain)
All
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Agreement.
Based
on
this certification and the indemnities provided for in the Agreement, please
release to the Servicer all original mortgage documents in your possession
relating to this mortgage loan.
| Dated: | By: | |||
| Signature | ||||
| Title |
Exhibit
G-1
Send
documents to:
Acknowledgement:
Wachovia
Bank, National Association
hereby
acknowledges that all original documents previously released on the above
captioned mortgage loan have been returned and received by the
Purchaser.
| Dated: | By: | |||
| Signature | ||||
| Title | ||||
Exhibit
G-2
EXHIBIT
H
[FORM
OF BACK-UP CERTIFICATION]
[Name
and
address of
master
servicer/trustee/depositor
receiving
the
certification]
Re:
[name
of securitization]
Chase
Home
Finance LLC,
as
[servicer] hereby certifies to the [master servicer] that:
1. Based
on
our knowledge, the information prepared by the [servicer] and relating to the
mortgage loans serviced by the [servicer] and provided by the [servicer] to
the
[master servicer] in its reports to the [master servicer] is accurate and
complete in all material respects as of the last day of the period covered
by
such report;
2. Based
on
our knowledge, the [distribution or servicing] information required to be
provided to the [master servicer] by the [servicer] pursuant to the [pooling
and
servicing] agreement has been provided to the [master servicer];
3. Based
upon the review required under the [pooling and servicing] agreement, and except
as disclosed in its reports, the [servicer] as of the last day of the period
covered by such reports has fulfilled its obligations under the [pooling and
servicing] agreement; and
4. The
[servicer] has disclosed to its independent auditor, who issues the independent
auditor’s report on the Uniform Single Attestation Program for Mortgage Bankers
for the [servicer], any significant deficiencies relating to the [servicer’s]
compliance with minimum servicing standards.
|
Chase
Home
Finance LLC,
as
[servicer]
____________________________________
Authorized
Signature
|
Exhibit
H-1
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
|
FOR
CUTOFF PERIOD ENDING:
|
|
INV.
LOAN #
|
|
CMMC
LOAN #
|
|
PAID
TO
|
|
BEG
SCH BAL
|
|
DIFF
|
|
CURTAILMENT
|
|
PREPAID
|
|
INTEREST
ADJ.
|
|
OTHER
|
|
LIQUIDATIONS
|
|
NET
INTEREST
|
|
GRS.
INTEREST
|
|
SCH
PRIN
|
|
UNSCH
PRIN
|
|
TOT
PRIN
|
|
REMITTANCE
|
|
END
SCH BAL
|
|
END
UPB
|
|
TRIAL
BALANCE
|
|
RATE
|
|
FEE
%
|
|
PASS
|
|
CONSTANT
|
|
SER-FEE
|
|
Loan
Type
|
|
Date
of payoff
|
|
Payoff
Rsn
|
|
Borrower
name
|
|
Group#
|
|
Comments
|
Exhibit
I-1
EXHIBIT
J
SERVICER
REQUIREMENTS
|
·
|
Loading/Updating
Investor Headers
|
| · |
Assignee
will provide investor matrix for input on Servicing Systems, if
applicable. Updates/additions will occur monthly, including new investor
header detail for each new deal that is
settled.
|
| · |
The
Seller, acting as servicer (“Servicer”), will load investor information
upon receipt or before month end for inclusion on the next month-end
file
to Assignee.
|
| · |
The
Servicer will include the investor information on the monthly servicer
file (“MSF”) and the monetary file
(“MF”).
|
|
·
|
Loading
Account Numbers
|
| · |
The
Servicer will load account numbers upon receipt or before month end
to
ensure inclusion with the next month-end files to
Assignee.
|
|
·
|
Automated
Monetary Transaction
File
|
| · |
The
Servicer will establish a process to feed a MSF to Assignee that
contains
loan information specified in the MSF layout
provided.
|
| · |
The
feed will include all new loans purchased in the previous month,
as well
as a maintenance file for all existing loans in the Assignee
portfolio.
|
| · |
The
file will cut-off at month-end, including any changes or transactions
that
occur on the last day of the month.
|
| · |
The
file will be transmitted from the Servicer to the specified mailbox
at
Assignee.
|
| · |
Assignee
will receive and process the electronic file on the first business
day of
the month for the previous month-end
file.
|
| · |
The
Servicer will provide an email providing file details for
balancing.
|
|
·
|
MSF
— Ongoing Process
|
| · |
The
Servicer will establish a process to feed a MSF to Assignee that
contains
loan information specified in the MSF layout
provided.
|
| · |
The
feed will include all new loans purchased in the previous month,
as well
as a maintenance file for all existing loans in the Assignee
portfolio.
|
| · |
The
file will cut-off at month-end, including any changes or transactions
that
occur on the last day of the month.
|
| · |
The
file will be transmitted from the Servicer to the specified mailbox
at
Assignee.
|
Exhibit
J-1
| · |
Assignee
will receive and process the electronic file on the first business
day of
the month for the previous month-end
file.
|
| · |
The
Servicer will provide an email providing file details for
balancing.
|
|
·
|
MSF
— Test File
|
For
testing purposes, Assignee requests a sample file that represents the
MSF.
| · |
The
Servicer will load/update investor header information received from
Assignee.
|
| · |
Assignee
will receive and process the file on the first business day of the
month
for the previous month-end file.
|
| · |
The
Servicer will provide an email providing file details for
balancing.
|
|
·
|
Reporting
Requirements
|
The
Servicer will provide the following reports to Assignee by the 5th business
day
of the month, unless otherwise specified. Reports will be provided in an
electronic format, unless otherwise specified. The reports listed below are
required for the Assignee’s project; reports in addition to these may also be
required.
The
description of these reports is as follows:
|
·
|
Collection
Report - Report that summarizes the collections made during the reporting
period.
|
|
·
|
Paid
In Full Report - Report that summarizes paid in full loans made during
the
reporting period.
|
|
·
|
Trial
Balance Report - Monthly statement of mortgage accounts or a trial
balance
as of the cutoff date.
|
|
·
|
Scheduled
Remittance Reports - Servicers send on a monthly basis. We would
like this
report by the 5th
business day.
|
|
·
|
Delinquency
Report - Report from the servicer to be sent by the 5th
business day. Assignee would like this report sent via e-mail or
fax.
|
Exhibit
J-2
EXECUTION
COPY
AMENDMENT
REG AB TO
MORTGAGE
LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment Reg AB, dated as of January 1, 2006 (this “Amendment”)
to the
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as
of May 1, 2005 (and as amended by its Amendment No. 1, dated as of the date
hereof), by and between Bank of America, National Association, Chase Home
Finance LLC, and JPMorgan Chase Bank, National Association (the “Agreement”), by
and between BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking
association, as purchaser (the “Purchaser”),
CHASE
HOME FINANCE, LLC, a Delaware limited liability company, as seller
(“CHF”or
the
“Seller”),
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION as Servicer (the
“Servicer”).
WHEREAS,
the Seller has sold certain mortgage loans to the Purchaser pursuant to the
terms of the Agreement; and
WHEREAS,
the parties to the Agreement desire to make the amendments to the Agreement
set
forth below in order to reflect the intention of the parties to comply with
Regulation AB.
In
consideration of the mutual agreements herein contained, each party agrees
as
follows for the benefit of the other party:
ARTICLE
I
Definitions
SECTION
1.01. Cross
Reference to Definitions in Agreement.
Capitalized terms used in this Amendment and not defined herein or amended
by
the terms of this Amendment shall have the meaning assigned to such terms in
the
Agreement.
ARTICLE
II
Amendments
to the Agreement
SECTION
2.01. Section 1.01 (Defined
Terms)
of the
Agreement is hereby amended, effective as of the date hereof for Mortgage Loans
purchased by the Purchaser pursuant to the Agreement prior to the date hereof
or
hereafter, by:
(a) deleting
in its entirety the definition of “Subservicer”; and
(b) adding
the following definitions thereto in their proper alphabetical
order:
Commission:
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,
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.
Reconstitution:
Any
Securitization Transaction, Agency Transfer, Pass-Through Transfer or Whole
Loan
Transfer.
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 other 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 11.05(a).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time with the reasonable consent of any Depositor and
any
other Person signing the Sarbanes Certification with respect to any
securitization, for which the Seller is responsible in its capacity as servicer
as identified on Exhibit K hereto.
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 as determined by and under the direction or authority of the
Seller or a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller 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 Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Any Subservicer shall meet the qualifications set forth in Section
4.01.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
SECTION
2.02. Section 4.01 (Servicing)
of the
Agreement is hereby amended, effective as of the date hereof for Mortgage Loans
purchased by the Purchaser pursuant to the Agreement prior to the date hereof
or
hereafter, by:
|
(a)
|
Adding
“(a)” immediately prior to the first sentence of the first paragraph of
such Section 4.01; and
|
| (b) |
Adding
to the end of such Section 4.01 the following in its
entirety:
|
(b) Notwithstanding
anything in this Agreement to the contrary, the Servicer shall not hire or
otherwise utilize the services of any Subservicer to fulfill any of the
obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
Section 4.01(b)(i). The Servicer shall not hire or otherwise utilize the
services of any Subcontractor, and shall not permit any Subservicer to hire
or
otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
Section 4.01(b)(ii).
(i) It
shall
not be necessary for the Servicer to seek the consent of the Purchaser, any
Master Servicer or any Depositor to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Sections 6.04(a), 6.04(b), 11.03,
11.04(c) and (e), and 11.05 of this Agreement to the same extent as if such
Subservicer were the Servicer, and to provide the information required with
respect to such Subservicer under Section 11.04(d) and (f) of this Agreement.
The Servicer shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser, any Master Servicer and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
6.04(a), any assessment of compliance and attestation required to be delivered
by such Subservicer under Section 6.04(b) and any back-up certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.04(b) as and when required to be
delivered.
(ii) It
shall
not be necessary for the Servicer to seek the consent of the Purchaser, any
Master Servicer or any Depositor to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Purchaser, any Master
Servicer and any Depositor (or any designee of the Depositor, such as a master
servicer or administrator) a written description of (i) which (if any) of such
Subcontractors are “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, and (ii) which elements of the Servicing Criteria
will be addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (i) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined by the Servicer
to
be “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.04(b) and 11.05 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer 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 6.04(b), in each case as and when required to be
delivered.
SECTION
2.03. Section 6.04 (Annual
Statement as to Compliance)
of the
Agreement is hereby amended, effective as of the date hereof for Mortgage Loans
purchased by the Purchaser pursuant to the Agreement prior to the date hereof
or
hereafter, by deleting such Section 6.04 in its entirety and replacing it with
the following:
Section
6.04 Annual
Statement as to Compliance
(a)
On or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, any Master Servicer and such Depositor
and signed by an authorized officer of the Servicer, to the effect that (i)
a
review of the Servicer’s activities during the immediately preceding calendar
year (or applicable portion thereof) and of its performance under this Agreement
and any applicable Reconstitution Agreement during such period has been made
under such officer’s supervision, and (ii) to the best of such officers’
knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement and any applicable Reconstitution Agreement
in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
(b)
On or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Purchaser, any Master Servicer and any Depositor a report regarding
the
Servicer’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Purchaser, such Master Servicer and such Depositor and signed
by an authorized officer of the Servicer, and shall address each of the
Servicing Criteria specified on a certification substantially in the form of
Exhibit K hereto delivered to the Purchaser concurrently with the execution
of
this Agreement;
(ii) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm that attests to, and reports on, the assessment of
compliance made by the Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant
to
Section 4.01(b)(ii) 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 (b) and (c) of this Section;
and
(iv) deliver
(and cause each Subservicer and Subcontractor described in clause (iii) above
to
deliver) 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 back-up
certification signed by the appropriate officer of the Seller in the form
attached hereto as Exhibit H.
The
Servicer acknowledges that the parties identified in clause (b)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. None
of
the Purchaser, any Master Servicer or any Depositor will request delivery of
a
certification under clause (b)(iv) above unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(c)
Each
assessment of compliance provided by a Subservicer pursuant to Section
6.04(b)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit K hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 6.04(b)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Section
4.01(b).
(d)
It is
acknowledged and agreed that each Master Servicer and the Sarbanes Certifying
Party shall be an express third party beneficiary of the provisions of this
Section 6.04, and shall be entitled independently to enforce the provisions
of
this Section 6.04 with respect to any obligations owed to such entity as if
it
were a direct party to this Agreement.
SECTION
2.04 The following sections shall be inserted in their entirety immediately
following Section 11.01 of the Agreement:
Section
11.02. Intent
of the Parties; Reasonableness.
The
parties hereto acknowledge and agree that the purpose of Sections 4.01(b),
6.04
and 11.02 through 11.05 of this 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, any Master Servicer or any Depositor
provide comparable disclosure in unregistered offerings. References in this
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 where the Seller is an originator of the
related Mortgage Loans, the Seller agrees to cooperate fully with the Purchaser
and any Master Servicer to deliver to the Purchaser (including any of its
assignees or designees), any Master Servicer and any Depositor, any statements,
reports, certifications, records and any other information necessary in the
good
faith determination of any Master Servicer and the Purchaser or any Depositor
(in each case, made in consultation with the Seller) to permit the Purchaser
or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to the Seller, any Subservicer, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor (in consultation with
the
Seller) to be necessary in order to effect such compliance.
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,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB. The
parties hereto acknowledge and agree that, in connection with a Securitization
Transaction, (i) no party shall file with the Commission any report contemplated
by Item 1122 of Regulation AB with respect to the Seller, the Servicer, any
Subservicer or any Subcontractor if such entity’s activities relate to five
percent (5%) or less of the asset pool of such Securitization Transaction or
sub-pool thereof, and (ii) no party shall file with the Commission any servicer
compliance statement contemplated by Item 1123 of Regulation AB with respect
to
the Seller, the Servicer, any Subservicer or any Subcontractor if such entity’s
activities relate to less than ten percent (10%) of the asset pool of such
Securitization Transaction or sub-pool thereof.
Section
11.03. Additional
Representations and Warranties of the Seller.
(a) In
connection
with any Securitization Transaction where the Seller sold the related Mortgage
Loans to the Purchaser,
the
Seller shall be deemed to represent to the Purchaser, 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 11.04 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; (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 this 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 aspects of the Seller’s financial
condition that could have a material adverse effect on the performance by
the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(vi)
there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller, any Subservicer or any Third-Party Originator;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Seller, any Subservicer or any Third-Party Originator 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.
(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 11.04,
the
Seller shall use its best efforts to confirm in writing within five (5) Business
Days following such request, but in no event later than ten (10) Business Days
following such request, 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
11.04. Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction where the Seller sold the related
Mortgage Loans to the Purchaser, the Seller shall (i) use its best efforts
to
provide within five (5) Business Days following request by the Purchaser or
any
Depositor, but in no event later than ten (10) Business Days following such
request, to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator and each Subservicer to provide), in substance reasonably
satisfactory in the good faith determination of the Purchaser and such Depositor
(made in consultation with the Seller), the information and materials specified
in paragraphs (a), (b), (c), (f) and (g) of this Section, and (ii) as promptly
as practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in substance reasonably satisfactory in the good
faith determination of the Purchaser and such Depositor (made in consultation
with the Seller)) the information specified in paragraph (d) of this Section;
provided, the parties hereto agree to negotiate in good faith from time to
time
in order to determine the disclosures, deliveries or notifications to be
provided pursuant to paragraphs (a), (b), (c), (d), (f) and (g).
(a) In
connection
with any Securitization Transaction where the Seller sold the related Mortgage
Loans to the Purchaser, if
so
requested by the Purchaser, any Master Servicer or any Depositor, after
consultation with the Seller, 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), or (ii) each
Third-Party Originator, and (iii) as applicable, each Subservicer, as reasonably
determined by the Purchaser and any Depositor to be required 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, in the good faith judgment of the Purchaser
or
any Depositor, 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, after consultation with
the
Seller, and reasonably determined by the Purchaser and any Depositor to be
required for the purpose of compliance with Item 1110(b)(2) of Regulation
AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, 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) In
connection
with any Securitization Transaction where the Seller sold the related Mortgage
Loans to the Purchaser, if
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to 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),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. 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.
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.
In
connection
with any Securitization Transaction where the Seller sold the related Mortgage
Loans to the Purchaser, if
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and 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 or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and 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 Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph only, a “Servicer”), as is reasonably requested for the purpose of
compliance with Item 1108 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 this 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, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(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 this
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 this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) 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;
(G) 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; and
(H) 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.
(d) In
connection with any Securitization Transaction and for the purpose of satisfying
the reporting obligations under the Exchange Act with respect to any class
of
asset-backed securities, the Seller shall (or shall cause each Subservicer
and
Third-Party Originator to) (i) as promptly as practicable notify the Purchaser,
any Master Servicer and any Depositor in writing of (A) any material litigation
or governmental proceedings pending against the Seller, any Subservicer, or
any
Third-Party Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Seller,
any Subservicer or any Third-Party Originator and 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 this Agreement or
any
Reconstitution Agreement, (D) any merger, consolidation or sale of substantially
all of the assets of the Seller and (E) the Servicer’s entry into any agreement
with a Subservicer (which Subservicer is determined by the Servicer to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB) to perform or assist in the performance of any of the Servicer’s
obligations under this 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 Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to such Servicer or any
Subservicer, such Servicer shall provide to the Purchaser 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) all information (in form and substance which
is compliant with Regulation AB and subject to the good faith negotiations
of
the parties hereto) reasonably requested by the Purchaser or any Depositor,
after consultation with the Servicer, 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.
(f) In
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
(10)
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 Servicer or any Subservicer, the Servicer or
such
Subservicer, as applicable, shall, to the extent the Serciver or such
Subservicer 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):
(i) any
material modifications, extensions or waivers of the terms, fees, penalties
or
payments of pool assets serviced under this Agreement during the distribution
period or that have cumulatively become material over time (Item 1121(a)(11)
of
Regulation AB);
(ii) material
breaches of representations or warranties or transaction covenants relating
to
pool assets serviced under this Agreement (Item 1121(a)(12) of Regulation AB);
and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets
serviced under this Agreement, any changes to pool assets serviced under this
Agreement (such as additions, substitutions or repurchases) and any material
changes in origination, underwriting or other criteria for acquisition or
selection of pool assets serviced under this Agreement (Item 1121(a)(14) of
Regulation AB).
(g) The
Seller shall provide to the Purchaser, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, evidence of Fidelity Bond Insurance and Errors and Omission Insurance
policy, financial information and reports, and such other information related
to
the Seller or any Subservicer or the Seller or Subservicer’s performance
hereunder and which information is available to the Seller and necessary for
compliance with Regulation AB.
Section
11.05. Indemnification;
Remedies.
(a) Each
Seller, jointly and severally, shall indemnify the Purchaser, each affiliate
of
the Purchaser, 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 and agents of
each
of the foregoing and of the Depositor, and shall hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain primarily and directly 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, accountants’ letter or other
material
provided
in written or electronic form under
any
of Sections 4.01(b), 6.04 and 11.02 through 11.05 of this Agreement, as
applicable, by
or on
behalf of the Seller or the Servicer, as applicable,
or
provided under any of Sections 4.01(b), 6.04 and 11.02 through 11.05 of this
Agreement, as applicable, by or on behalf of any Subservicer, Subcontractor
or
Third-Party Originator (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;
(ii) any
breach by the Seller of its obligations under any of Sections 4.01(b), 6.04,
and
11.02 through 11.05 of this Agreement, including particularly any failure by
the
Seller, the Servicer, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under any of Sections 4.01(b),
6.04 and 11.02 through 11.05 of this Agreement, as applicable, including any
failure by the Seller to identify pursuant to Section 4.01(b)(ii) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Section
11.03(a) or in a writing furnished pursuant to Section 11.03(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 11.03(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
gross
negligence of the Seller in connection with its performance under Sections
4.01(b), 6.04 and 11.02 through 11.05 of this Agreement.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by such Indemnified Party in such proportion
as is
appropriate to reflect the relative fault of such 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 or the Servicer, as applicable, 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, any Subcontractor or any Third-Party
Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) (i) Any
failure by the Seller, the Servicer, any Subservicer, any Subcontractor or
any
Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under any of Sections 4.01(b),
6.04 and 11.02 through 11.05 of this Agreement, as applicable, or any breach
by
the Seller of a representation or warranty set forth in Section 11.03(a) or
in a
writing furnished pursuant to Section 11.03(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 11.03(b)
to the extent made as of a date subsequent to such closing date, which failure
or breach continues unremedied for a period of five (5) calendar days after
the
date on which written or electronic notice of such failure, requiring the same
to have been remedied, shall have been given to the Seller or the Servicer,
as
applicable, by the Purchaser or Depositor, shall, except as provided in clause
(ii) of this paragraph, constitute an Event of Default with respect to the
Seller under this Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Servicer as servicer under this
Agreement and/or any applicable Reconstitution Agreement pursuant to this
Agreement or any applicable Reconstitution Agreement; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Servicer as servicer, such provision
shall be given effect.
(ii) Any
failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 4.01(b), 6.04(a) or 6.04(b), including (except as
provided below) any failure by the Servicer to identify pursuant to Section
4.01(b)(ii) any Subcontractor “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB, which failure continues unremedied
for a period of ten (10) calendar days after the date on which written notice
of
such failure, requiring the same to have been remedied, shall have been given
to
the Servicer by the Purchaser or Depositor, shall constitute an Event of Default
with respect to the Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer
or Depositor, as applicable, in its sole discretion to terminate the rights
and
obligations of the Servicer as servicer under this Agreement and/or any
applicable Reconstitution Agreement pursuant to the terms of this Agreement
or
any applicable Reconstitution Agreement; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Servicer as servicer, such provision
shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Servicer pursuant to this subparagraph (b)(ii) if a failure
of the Servicer 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.
Notwithstanding
the provisions set forth in this Agreement, neither the Seller nor the Servicer
shall be obligated to provide any indemnification or reimbursement hereunder
to
any of the parties described in Section 11.05(a) or any other party for
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain which are indirect, consequential, punitive or special in
nature.
SECTION
2.05. The Agreement is hereby further amended by replacing, in its entirety,
Exhibit H to the Agreement with Attachment 1 to this Amendment and by
incorporating Attachment 2 to this Amendment as Exhibit K to the
Agreement.
Miscellaneous
SECTION
3.01. Counterparts.
This
Amendment may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
SECTION
3.02. Headings.
The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation or any provision hereof.
SECTION
3.03. Agreement
in Full Force and Effect as Amended.
Except
as specifically amended or waived hereby, all of the terms and conditions of
the
Agreement shall remain in full force and effect. All references to the Agreement
in any other document or instrument shall be deemed to mean such Agreement
as
amended by this Amendment. This Amendment shall not constitute a novation of
the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and obligations of the Agreement, as amended by this
Amendment, as though the terms and obligations of the Agreement were set forth
herein.
SECTION
3.04. Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PROVISIONS.
SECTION
3.05. Third
Party Beneficiary.
For
purposes of this Amendment and any related provisions hereto, 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.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective officers as of the day and year first above
written.
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BANK
OF AMERICA, NATIONAL ASSOCIATION
(Purchaser)
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By:
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Name:
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Title:
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|
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CHASE
HOME FINANCE LLC
(Seller)
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
(Servicer)
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By:
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Name:
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Title:
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ATTACHMENT
1
EXHIBIT
H
FORM
OF ANNUAL CERTIFICATION
Re: The
[ ] agreement dated
as of [ ],
200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
The
Servicer certifies to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) The
Servicer has reviewed the servicer compliance statement provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Servicer’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Servicer Servicing Information”);
(2) Based
on
the Servicer’s knowledge, the Servicer Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicer Servicing
Information;
(3) Based
on
the Servicer’s knowledge, all of the Servicer Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) Based
upon the Servicer’s knowledge and the compliance review conducted in preparing
the Compliance Statement and except as disclosed in the Compliance Statement,
the Servicing Assessment or the Attestation Report, the Servicer has fulfilled
its obligations under the Agreement in all material respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date:
________________________
By:___________________________
Name:
Title:
ATTACHMENT
2
EXHIBIT
K
FORM
OF
CERTIFICATION AS TO ASSESSMENT OF COMPLIANCE
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Re:
|
The
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as of
May 1, 2005 (the “Agreement”), between Bank of America, National
Association, as purchaser, Chase Home Finance LLC, as seller. and
JPMorgan
Chase Bank, National Association, as
servicer.
|
I,
[_______________________],
the
[_______________________]
of
[SELLER][SUBSERVICER] (the “Company”), certify to [the Purchaser] and [the
Depositor], and their officers, with the knowledge and intent that they will
rely upon this certification, that:
(1) I
am
responsible for assessing the Servicing Criteria (set forth in Item 1122(d)
of
Regulation AB and identified in the table below) applicable to the
Company;
(2) The
Servicing Criteria were used to assess the Company’s compliance with the
Servicing Criteria applicable to the Company;
(3) As
of
December 31, [INSERT IMMEDIATELY PRECEDING YEAR] and for the period covered
by
the preceding calendar year, the Company is in compliance with the Servicing
Criteria applicable to the Company. [DISCLOSE EXCEPTIONS TO COMPLIANCE];
[and]
(4) A
registered public accounting firm has issued an attestation report on the
Company’s compliance with the applicable Servicing Criteria as of December 31,
[INSERT IMMEDIATELY PRECEDING YEAR], and for the period covered by the preceding
calendar year[.][; and]
[(5) Based
on
the Company’s activities performed with respect to asset-backed securities
transactions taken as a whole involving the Company that are backed by the
same
asset type as the Mortgage Loans, the following Servicing Criteria are not
applicable to the Company: [LIST INAPPLICABLE SERVICING CRITERIA, IF
ANY].]
JPMCB
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Ö
|
|
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.
|
Ö
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
Ö
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
Ö
|
|
|
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.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
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.
|
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
|
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.
|
Ö
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
Ö
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
Ö
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
CHF
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
|
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.
|
Ö
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
Ö
|
|
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.
|
Ö
|
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
|
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.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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).
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
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.
|
Ö
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
Ö
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Ö
|
|
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.
|
|
|
|
|
|
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Agreement.
[NAME
OF
SELLER] [NAME OF SUBSERVICER]
Date: __________________________
By: __________________________
Name:
Title:
