MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
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GREENPOINT
MORTGAGE FUNDING, INC.
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| Seller and Servicer | |
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NORTH
FORK BANK
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| Seller | |
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CITIGROUP
GLOBAL MARKETS REALTY CORP.
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| Initial Purchaser | |
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Dated
as of March 1, 2007
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Fixed
and Adjustable Rate
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First
and Second Lien Mortgage
Loans
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TABLE
OF
CONTENTS
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SECTION
1.
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Definitions
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SECTION
2.
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Agreement
to Purchase
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SECTION
3.
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Mortgage
Loan Schedules
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SECTION
4.
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Purchase
Price
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SECTION
5.
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Examination
of Mortgage Files
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SECTION
6.
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Conveyance
from Seller to Initial Purchaser.
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Subsection
6.01.
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Conveyance
of Mortgage Loans; Possession of Servicing Files.
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Subsection
6.02.
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Books
and Records.
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Subsection
6.03.
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Delivery
of Mortgage Loan Documents.
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SECTION
7.
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Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
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Subsection
7.01.
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Representations
and Warranties Respecting the Seller.
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Subsection
7.02.
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Representations
and Warranties Regarding Individual Mortgage Loans.
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Subsection
7.03.
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Remedies
for Breach of Representations and Warranties.
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Subsection
7.04.
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Repurchase
of Certain Mortgage Loans.
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SECTION
8.
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Closing
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SECTION
9.
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Closing
Documents.
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SECTION
10.
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Costs
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SECTION
11.
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Servicer’s
Servicing Obligations
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SECTION
12.
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Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole
Loan
Transfer or a Securitization Transaction on One or More Reconstitution
Dates.
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SECTION
13.
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The
Seller.
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Subsection
13.01.
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Additional
Indemnification by the Seller.
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Subsection
13.02.
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Merger
or Consolidation of the Seller.
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Subsection
13.03.
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Limitation
on Liability of the Servicer and Others.
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Subsection
13.04.
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Seller
Not to Resign.
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Subsection
13.05.
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No
Transfer of Servicing.
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SECTION
14.
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DEFAULT.
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Subsection
14.01.
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Events
of Default.
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Subsection
14.02.
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Waiver
of Defaults.
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SECTION
15.
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Termination
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SECTION
16.
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Successor
to the Servicer
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SECTION
17.
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Financial
Statements
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SECTION
18.
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Mandatory
Delivery: Grant of Security Interest
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SECTION
19.
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Notices
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SECTION
20.
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Severability
Clause
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SECTION
21.
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Counterparts
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SECTION
22.
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Governing
Law
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SECTION
23.
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Intention
of the Parties
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SECTION
24.
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Successors
and Assigns
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SECTION
25.
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Waivers
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SECTION
26.
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Exhibits
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SECTION
27.
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General
Interpretive Principles
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SECTION
28.
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Nonsolicitation
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SECTION
29.
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Reproduction
of Documents
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SECTION
30.
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Further
Agreements
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SECTION
31.
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Privacy.
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EXHIBITS
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EXHIBIT
1
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SELLER’S
OFFICER’S CERTIFICATE
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EXHIBIT
2
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FORM
OF OPINIONS OF COUNSEL TO THE SELLERS
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EXHIBIT
3
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SECURITY
RELEASE CERTIFICATION
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EXHIBIT
4
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ASSIGNMENT
AND CONVEYANCE
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EXHIBIT
5
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CONTENTS
OF EACH MORTGAGE FILE
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EXHIBIT
6
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FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
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EXHIBIT
7
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FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
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EXHIBIT
8
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SERVICING
ADDENDUM FOR SERVICING RETAINED MORTGAGE LOANS
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EXHIBIT
9
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SERVICING
ADDENDUM FOR SERVICING RELEASED MORTGAGE LOANS
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EXHIBIT
10
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SELLER’S
UNDERWRITING GUIDELINES
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SCHEDULE
I
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DATA
FILE
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SCHEDULE
II
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MORTGAGE
LOAN SCHEDULE
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This
is a
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the “Agreement”), dated
as of March 1, 2007 by and among Citigroup Global Markets Realty Corp., having
an office at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000 (the “Initial Purchaser”, and the Initial Purchaser or the
Person, if any, to which the Initial Purchaser has assigned its rights and
obligations hereunder as Purchaser with respect to a Mortgage Loan, and each
of
their respective successors and assigns, the “Purchaser”), GreenPoint Mortgage
Funding, Inc., having an office at 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000 (“GreenPoint”) and North Fork Bank, having an office at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx
00000 (“North Fork”, together with GreenPoint, the “Sellers” and each a
“Seller” as the context requires).
WITNESSETH
:
WHEREAS,
each Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Sellers, certain
conventional fixed and adjustable rate residential first and second lien
mortgage loans (the “Mortgage Loans”) and, with respect to the Servicing
Released
Mortgage Loans (as defined herein), the servicing rights appurtenant
thereto, all of which are serviced
by GreenPoint (in such capacity, the “Servicer”),
as described herein on a servicing
retained or servicing released basis, and which shall be delivered in groups
of
whole loans on various dates as provided in the related Confirmation
(each, a “Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first or second lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule for the related
Mortgage Loan Package, which is to be annexed to the related Assignment and
Conveyance on each Closing Date as Schedule One;
WHEREAS,
the Purchaser, the Servicer and the Sellers wish to prescribe the manner of
the
conveyance, servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Sellers, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer in a whole loan or participation format or a public or
private mortgage-backed securities transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser, the Servicer and
the Sellers agree as follows:
SECTION
1. Definitions. For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Adjustable
Rate Mortgage Loan: A Mortgage Loan which provides for the adjustment of the
Mortgage Interest Rate payable in respect thereto.
Adjustment
Date: With respect to each Adjustable Rate Mortgage Loan, the date set forth
in the related Mortgage Note on which the Mortgage Interest Rate on such
Adjustable Rate Mortgage Loan is adjusted in accordance with the terms of the
related Mortgage Note.
Agreement: This
Master Mortgage Loan Purchase and Servicing Agreement including all exhibits,
schedules, amendments and supplements hereto.
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 by an appraiser
who met the minimum requirements of FNMA and FHLMC, 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 by an appraiser who met
the
minimum requirements of FNMA and FHLMC.
Assignment
and Conveyance: An assignment and conveyance of the Mortgage
Loans purchased on a Closing Date in the form annexed hereto as Exhibit
4.
Assignment
of Mortgage: With respect to each Mortgage Loan which is not a MOM Loan, an
individual 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 give record notice of
the
sale of the Mortgage to the Purchaser.
Business
Day: Any day other than a Saturday or Sunday, or a day on which banking and
savings and loan institutions in the State of California or the State of New
York are authorized or obligated by law or executive order to be
closed.
Buydown
Agreement: An agreement between the Seller and a Mortgagor, or an
agreement among the Seller, a Mortgagor and a seller of a Mortgaged Property
or
a third party with respect to a Mortgage Loan which provides for the application
of Buydown Funds.
Buydown
Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, the Seller or any other source, plus interest
earned thereon, in order to enable the Mortgagor to reduce the payments required
to be made from the Mortgagor’s funds in the early years of a Mortgage
Loan.
Buydown
Mortgage Loan: Any Mortgage Loan in respect of which, pursuant to
a Buydown Agreement, (i) the Mortgagor pays less than the full monthly payments
specified in the Mortgage Note for a specified period and (ii) the difference
between the payments required under such Buydown Agreement and the Mortgage
Note
is provided from Buydown Funds.
Buydown
Period: The period of time when a Buydown Agreement is in effect
with respect to a related Buydown Mortgage Loan.
Cash-Out
Refinancing: A Refinanced Mortgage Loan the proceeds of which
were in excess of the principal balance of any existing first and second
mortgage on the related Mortgaged Property and related closing costs, and were
used to pay any such existing first and second mortgage, related closing costs
and subordinate mortgages on the related Mortgaged Property.
Closing
Date: The date or dates on which the Purchaser, from time to time, shall
purchase and the Seller, from time to time, shall sell to the Purchaser, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the
related Mortgage Loan Package.
Closing
Documents: With respect to any Closing Date, the documents
required pursuant to Section 9.
Code: The
Internal Revenue Code of 1986, or any successor statute thereto.
Combined
Loan-to-Value Ratio or CLTV: With respect to any Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
sum
of (a) the original principal balance of the Mortgage Loan, plus (b) the unpaid
principal balance of any related subordinate mortgage loan or loans secured
by
the Mortgaged Property, and the denominator of which is the Appraised Value
of
the related Mortgaged Property.
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property by exercise of the power of
condemnation or the right of eminent domain.
Confirmation: With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
purchase price and terms letter agreement between the Purchaser and the Seller
(including any exhibits, schedules and attachments thereto), setting forth
the
terms and conditions of such transaction and describing the Mortgage Loans
to be
purchased by the Purchaser on such Closing Date. A Confirmation may
relate to more than one Mortgage Loan Package to be purchased on one or more
Closing Dates hereunder.
Convertible
Mortgage Loan: A Mortgage Loan that by its terms and subject to certain
conditions contained in the related Mortgage or Mortgage Note allows the
Mortgagor to convert the adjustable Mortgage Interest Rate on such Mortgage
Loan
to a fixed Mortgage Interest Rate.
Credit
Score: The credit score of the Mortgagor provided by Fair, Xxxxx &
Company, Inc. or such other organization providing credit scores at the
time of
the origination of a Mortgage Loan. If two credit scores are
obtained, the Credit Score shall be the lower of the two credit
scores. If three credit scores are obtained, the Credit Score shall
be the middle of the three credit scores.
Custodial
Account: The separate account or accounts, each of which shall be an
Eligible Account, created and maintained pursuant to this Agreement, which
shall
be entitled “GreenPoint Mortgage Funding, Inc., as servicer, in trust for the
Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage Loans”,
established at a financial institution acceptable to the Purchaser.
Cut-off
Date: The first day of the month in which the related Closing Date occurs,
or as otherwise set forth in the related Confirmation.
Data
File: The electronic data file containing the fields set forth on
Schedule I hereto and attached to the related Assignment and
Conveyance.
Deleted
Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Qualified Substitute Mortgage Loan.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: With respect to each Distribution Date, the fifteenth
(15th) day of the calendar month in which such Distribution Date occurs or,
if
such fifteenth (15th) day is not a Business Day, the Business Day immediately
preceding such fifteenth (15th) day.
Distribution
Date: The eighteenth (18th) day of each month, commencing on the
tenth day of the month next following the month in which the related Cut-off
Date occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately preceding such eighteenth (18th) day.
Due
Date: With respect to each Distribution Date, the first day of the calendar
month in which such Distribution Date occurs, which is the day on which the
Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
Due
Period: With respect to each Distribution Date, the period commencing on the
second day of the month preceding the month of the Distribution Date and ending
on the first day of the month of the Distribution Date.
Eligible
Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term unsecured debt obligations of such holding company
of
which) are rated A-1 by S&P or Prime-1 by Moody’s (or a comparable rating if
another rating agency is specified by the Initial Purchaser by written notice
to
the Servicer) at the time any amounts are held on deposit therein, (ii) an
account or accounts the deposits in which are fully insured by the FDIC or
(iii)
a trust account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
Escrow
Account: The separate trust account or accounts created and maintained
pursuant to this Agreement which shall be entitled “GreenPoint Mortgage Funding,
Inc., as servicer, in trust for the Purchaser and various Mortgagors, Fixed
and
Adjustable Rate Mortgage Loans”, established at a financial institution
acceptable to the Purchaser.
Escrow
Payments: The amounts constituting ground rents, taxes,
assessments, water charges, sewer rents, Primary Insurance Policy premiums,
fire
and hazard insurance premiums and other payments required to be escrowed by
the
Mortgagor with the Mortgagee pursuant to the terms of any Mortgage Note or
Mortgage.
Event
of Default: Any one of the events enumerated in Section
14.01.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
FDIC:
The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC:
Xxxxxxx Mac or any successor thereto.
Final
Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property repurchased
by the Seller pursuant to this Agreement), a determination made by the Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects
to
be finally recoverable in respect thereof have been so recovered. The
Servicer shall maintain records, prepared by a servicing officer of the
Servicer, of each Final Recovery Determination.
First
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of trust or other instrument securing a Mortgage Note which creates a
first
lien on the Mortgaged Property.
Fixed
Rate Mortgage Loan: A Mortgage Loan with respect to which the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Flood
Zone Service Contract: A transferable contract maintained for the
Mortgaged Property with a nationally recognized flood zone service provider
for
the purpose of obtaining the current flood zone status relating to such
Mortgaged Property
FNMA: Xxxxxx
Xxx or any successor thereto.
Gross
Margin: With respect to any Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note and the related
Mortgage Loan Schedule that is added to the Index on each Adjustment Date in
accordance with the terms of the related Mortgage Note to determine the new
Mortgage Interest Rate for such Mortgage Loan.
HUD: The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With respect to any Adjustable Rate Mortgage Loan, the index identified on
the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Closing Date: The Closing Date on which the Initial Purchaser
purchases and the Seller sells the first Mortgage Loan Package
hereunder.
Initial
Purchaser: Citigroup Global Markets Realty Corp., or any
successor.
Initial
Rate Cap: With respect to each Adjustable Rate Mortgage Loan and the initial
Adjustment Date therefor, a number of percentage points per annum that is set
forth in the related Final Mortgage Loan Schedule and in the related Mortgage
Note, which is the amount by which the Mortgage Interest Rate for such
Adjustable Rate Mortgage Loan may increase or decrease on the initial Adjustment
Date.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Interim
Servicing Period: With respect to any Servicing Released Mortgage
Loan, the period commencing on the related Closing Date and ending on the
related Servicing Transfer Date; provided, however that the Interim Servicing
Period may be extended for an additional period by written notice by the
Purchaser.
Lender
Paid Mortgage Insurance Policy or LPMI Policy: A policy of mortgage
guaranty insurance issued by a Qualified Insurer in which the owner or servicer
of the Mortgage Loan is responsible for the premiums associated with such
mortgage insurance policy.
Liquidation
Proceeds: Amounts, other than Insurance Proceeds and Condemnation
Proceeds, received in connection with the liquidation of a defaulted Mortgage
Loan through trustee’s sale, foreclosure sale or otherwise, other than amounts
received following the acquisition of REO Property and prior to an REO
Disposition.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan as of any date of
determination, the ratio on such date of the outstanding principal amount of
the
Mortgage Loan, to the Appraised Value of the Mortgaged Property.
Maximum
Mortgage Interest Rate: With respect to each Adjustable Rate Mortgage Loan,
a rate that is set forth on the related Mortgage Loan Schedule and in the
related Mortgage Note and is the maximum interest rate to which the Mortgage
Interest Rate on such Mortgage Loan may be increased on any Adjustment
Date.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor thereto.
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate: With respect to each Adjustable Rate Mortgage Loan,
a rate that is set forth on the related Mortgage Loan Schedule and in the
related Mortgage Note and is the minimum interest rate to which the Mortgage
Interest Rate on such Mortgage Loan may be decreased on any Adjustment
Date.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as the
mortgagee of record of such Mortgage Loan, solely as nominee for the originator
of such Mortgage Loan and its successors and assigns, at the origination
thereof.
Monthly
Advance: The aggregate of the advances made by the Servicer on
any Distribution Date pursuant to Section 11.21 of Exhibit
8.
Monthly
Payment: With respect to any Mortgage Loan, the scheduled combined payment
of principal and interest payable by a Mortgagor under the related Mortgage
Note
on each Due Date.
Moody’s: Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The mortgage, deed of trust or other instrument creating a first or second
lien
on Mortgaged Property securing the Mortgage Note.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgage
File: The items pertaining to a particular Mortgage Loan referred to in
Exhibit 5 annexed hereto, and any additional documents required to be
added to the Mortgage File pursuant to this Agreement or the related
Confirmation.
Mortgage
Interest Rate: With respect to each Fixed Rate Mortgage Loan, the fixed
annual rate of interest provided for in the related Mortgage Note and, with
respect to each Adjustable Rate Mortgage Loan, the annual rate that interest
accrues on such Adjustable Rate Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note.
Mortgage
Loan: Each first or second lien residential Servicing Retained Mortgage Loan
and Servicing Released Mortgage Loan, sold, assigned and transferred to the
Purchaser pursuant to this Agreement and the related Confirmation and identified
on the Mortgage Loan Schedule annexed to this Agreement on the related Closing
Date, which Mortgage Loan includes without limitation the Mortgage File, the
Monthly Payments, Principal Prepayments, Prepayment Charges, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
Mortgage
Loan Documents: The documents described as the “Mortgage Loan Documents” in
Exhibit 5 annexed hereto pertaining to any Mortgage Loan.
Mortgage
Loan Package: The Mortgage Loans listed on a Mortgage Loan
Schedule, delivered to the Purchaser or its designee at least five (5) Business
Days prior to the related Closing Date and attached to the Assignment and
Conveyance as Schedule One on the related Closing Date.
Mortgage
Loan Schedule: With respect to each Mortgage Loan Package, the schedule of
Mortgage Loans to be annexed to an Assignment and Conveyance as Schedule II
on
each Closing Date for the Mortgage Loan Package delivered on such Closing Date
in both hard copy and electronic form, such schedule setting forth the
information on Schedule II attached hereto with respect to each Mortgage
Loan in the Mortgage Loan Package.
Mortgage
Note: The original executed note or other evidence of the Mortgage Loan
indebtedness of a Mortgagor.
Mortgaged
Property: The Mortgagor’s real property securing repayment of a related
Mortgage Note, consisting of a fee simple interest in a single parcel of real
property improved by a Residential Dwelling.
Mortgagor:
The obligor on a Mortgage Note, the owner of the Mortgaged Property and the
grantor or mortgagor named in the related Mortgage and such grantor’s or
mortgagor’s successors in title to the Mortgaged Property.
Net
Mortgage Rate: With respect to any Servicing Retained Mortgage
Loan (or the related REO Property), as of any date of determination, a per
annum
rate of interest equal to the then applicable Mortgage Interest Rate for such
Servicing Retained Mortgage Loan minus the Servicing Fee Rate.
Nonrecoverable
Monthly Advance: Any Monthly Advance previously made or proposed
to be made in respect of a Servicing Retained Mortgage Loan or REO Property
that, in the good faith business judgment of the Servicer, will not, or, in
the
case of a proposed Monthly Advance, would not be, ultimately recoverable from
related late payments, Insurance Proceeds or Liquidation Proceeds on such
Servicing Retained Mortgage Loan or REO Property as provided
herein.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or the Vice
Chairman of the Board or a President or a Vice President and by the Treasurer
or
the Secretary or one of the Assistant Treasurers or Assistant Secretaries of
the
Person on behalf of whom such certificate is being delivered.
Opinion
of Counsel: A written opinion of counsel, who may be salaried counsel for
the Person on behalf of whom the opinion is being given, reasonably acceptable
to each Person to whom such opinion is addressed.
Periodic
Rate Cap: With respect to each Adjustable Rate Mortgage Loan and any
Adjustment Date therefor, a number of percentage points per annum that is set
forth in the related Mortgage Loan Schedule and in the related Mortgage Note,
which is the maximum amount by which the Mortgage Interest Rate for such
Adjustable Rate Mortgage Loan may increase (without regard to the Maximum
Mortgage Interest Rate) or decrease (without regard to the Minimum Mortgage
Interest Rate) on such Adjustment Date from the Mortgage Interest Rate in effect
immediately prior to such Adjustment Date.
Person: An
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Preliminary
Servicing Period: With respect to any Servicing Retained Mortgage
Loans, the period commencing on the related Closing Date and ending on the
date
the Seller enters into Reconstitution Agreements which amend or
restate the servicing provisions of this Agreement.
Prepayment
Charge: With respect to any Mortgage Loan, any prepayment penalty
or premium thereon payable in connection with a principal prepayment on such
Mortgage Loan pursuant to the terms of the related Mortgage Note.
Primary
Insurance Policy: A policy of primary mortgage guaranty insurance issued by
a Qualified Insurer.
Principal
Prepayment: Any payment or other recovery of principal on a Mortgage Loan
which is received in advance of its scheduled Due Date, including any Prepayment
Charge or penalty thereon, 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.
Purchase
Price: The price paid on the related Closing Date by the Purchaser to the
Seller pursuant to the related Confirmation in exchange for the Mortgage Loans
purchased on such Closing Date as provided in Section 4.
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.
Qualified
Insurer: Any insurer which meets the requirements of FNMA and
FHLMC.
Qualified
Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on
the
date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during
or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Interest Rate not
less than (and not more than one percentage point in excess of) the Mortgage
Interest Rate of the Deleted Mortgage Loan, (iii) have a Net Mortgage Rate
not
less than (and not more than one percentage point in excess of) the Net Mortgage
Rate of the Deleted Mortgage Loan, (iv) have a remaining term to maturity not
greater than (and not less than) that of the Deleted Mortgage Loan, (v) have
the
same Due Date as the Due Date on the Deleted Mortgage Loan, (vi) have a
Loan-to-Value Ratio as of the date of substitution equal to or lower than the
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (vii) be
covered under a Primary Insurance Policy if such Qualified Substitute Mortgage
Loan has a Loan-to-Value Ratio in excess of 80% and the Deleted Mortgage Loan
was covered under a Primary Insurance Policy, (viii) conform to each
representation and warranty set forth in Subsection 7.02 of this Agreement
and
(ix) be the same type of mortgage loan (i.e. first or second, fixed or
adjustable rate with the same Gross Margin and Index as the Deleted Mortgage
Loan). In the event that one or more mortgage loans are substituted
for one or more Deleted Mortgage Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be determined
on
the basis of weighted average Mortgage Interest Rates and shall be satisfied
as
to each such mortgage loan, the terms described in clause (iv) shall be
determined on the basis of weighted average remaining terms to maturity, the
Loan-to-Value Ratios described in clause (vi) hereof shall be satisfied as
to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (viii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be. In addition, the substitution of more
than one Mortgage Loan pursuant to the previous sentence shall be subject to
the
Purchaser’s approval in its sole discretion..
Rate/Term
Refinancing: A Refinanced Mortgage Loan, the proceeds of which
are not in excess of the existing first and second mortgage loan on the related
Mortgaged Property and related closing costs, and were used exclusively to
satisfy the then existing first and second mortgage loan of the Mortgagor on
the
related Mortgaged Property and to pay related closing costs.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreements: The agreement or agreements entered into by the Seller and the
Purchaser and/or certain third parties on the Reconstitution Date or Dates
with
respect to any or all of the Mortgage Loans serviced hereunder, in connection
with a Whole Loan Transfer or a Securitization Transaction as provided in
Section 12.
Reconstitution
Date: The date or dates on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted
as
part of a Whole Loan Transfer or Securitization Transaction pursuant to Section
12 hereof.
Record
Date: With respect to each Distribution Date, the last Business
Day of the month immediately preceding the month in which such Distribution
Date
occurs.
Refinanced
Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regulation
AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC: A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
Provisions: Provisions of the federal income tax law relating to REMICs,
which appear in Sections 860A through 860G of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices
and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
REO
Disposition: The final sale by the Servicer of any REO
Property.
REO
Property: A Mortgaged Property acquired as a result of the
liquidation of a Mortgage Loan.
Repurchase
Price: With respect to any Mortgage Loan, a price equal to (a) the Purchase
Price percentage used to calculate the Purchase Price, as stated in the related
Confirmation, times the Stated Principal Balance of the Mortgage Loan so
repurchased plus (b) accrued interest thereon at the Mortgage Interest Rate
from
the interest paid to date, to but not including, the last day of the month
that
such repurchase occurs, less amounts received in respect of such repurchased
Mortgage Loan which are being held in the Custodial Account for distribution
in
connection with such Mortgage Loan, plus (c) any unreimbursed servicing advances
and monthly advances (including nonrecoverable monthly advances) and any unpaid
servicing fees allocable to such Mortgage Loan paid by any party other than
the
Seller, plus (d) any costs and expenses incurred by the Purchaser, the servicer,
master servicer or any trustee in respect of the breach or defect giving rise
to
the repurchase obligation including, without limitation, any costs
and damages incurred by any such party in connection with any violation by
any
such Mortgage Loan of any predatory or abusive lending law.
Residential
Dwelling: Any one of the following: (i) a detached one-family
dwelling, (ii) a detached two- to four-family dwelling, (iii) a one-family
dwelling unit in a FNMA eligible condominium project, or (iv) a detached
one-family dwelling in a planned unit development, none of which is manufactured
housing, a co-operative, a commercial property, an agricultural property, a
mixed use property or a mobile home.
Second
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of trust or other instrument securing a Mortgage Note which creates a
second lien on the Mortgaged Property.
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:
With respect to any Mortgage Loan, the party selling such Mortgage Loan to
the
Initial Purchaser hereunder, which Seller shall be either North Fork or
GreenPoint, as applicable.
Seller/Servicer
Information: As defined in Section 30.07(a).
Servicer:
As defined in the first whereas clause of this Agreement.
Servicing
Addendum: The terms and conditions attached hereto as Exhibit
8 which will govern the servicing of the Servicing Retained Mortgage Loans
by the Servicer during the Preliminary Servicing Period, and the
terms and conditions attached hereto as Exhibit 9 which will govern the
interim servicing of the Servicing Released Mortgage Loans by the Servicer
during the Interim Servicing Period.
Servicing
Advances: All customary, reasonable and necessary “out-of-pocket”
costs and expenses incurred by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) preservation,
restoration and repair of a Mortgaged Property, (ii) any enforcement or judicial
proceedings with respect to a Mortgage Loan, including foreclosure actions
and
(iii) the management and liquidation of REO Property.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing
Fee: With respect to each Servicing Retained Mortgage Loan, the amount of
the annual servicing fee the Purchaser shall pay to the Servicer, which shall,
for each month, be equal to one-twelfth of the product of (a) the Servicing
Fee
Rate and (b) the unpaid principal balance of the Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respectively 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 payable solely from, the interest portion (including recoveries with
respect to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Section 11.05) of related Monthly Payment collected by the
Servicer, or as otherwise proved under Section 11.05. If the
Preliminary Servicing Period includes any partial month, the Servicing Fee
for
such month shall be pro rated at a per diem rate based upon a 30-day
month. With respect to each Servicing Released Mortgage Loan, the
Servicing Fee shall be an amount equal to the dollar amount per Mortgage Loan
set forth in the related Confirmation. If the Interim Servicing
Period includes any partial month, the Servicing Fee for such month shall be
pro
rated at a per diem rate based upon a 30 day month.
Servicing
Fee Rate: With respect to each Servicing Retained Mortgage Loan, the per
annum rate set forth in the related Confirmation at which the Servicing Fee
accrues.
Servicing
File: With respect to each Mortgage Loan, the file retained by the Servicer
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.
Servicing
Released Mortgage Loan: The Mortgage Loans sold by the Seller on a servicing
released basis, which Servicing Released Mortgage Loans are serviced pursuant
to
the Servicing Addendum attached hereto as Exhibit 9.
Servicing
Retained Mortgage Loan: The Mortgage Loans sold by the Seller on a servicing
retained basis, which Servicing Retained Mortgage Loans are serviced by the
Servicer pursuant to the Servicing Addendum attached hereto as Exhibit
8.
Servicing
Transfer Costs: All reasonable costs and expenses incurred by the
Purchaser in connection with the transfer of servicing of the Servicing Retained
Mortgage Loans from Servicer, including, without limitation, any reasonable
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may
be
required by the Purchaser (or any successor to Seller appointed pursuant to
Section 16) to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the Purchaser (or any successor to Seller appointed pursuant
to Section 16) to service the Mortgage Loans properly and
effectively.
Servicing
Transfer Date: With respect to each Servicing Released Mortgage Loan, the
date or dates set forth in the related Confirmation upon which the actual
transfer of servicing responsibilities for any Servicing Released Mortgage
Loan
being herein is transferred from the Servicer to the Purchaser or its
designee.
S&P: Standard
& Poor’s, a division of the XxXxxx-Xxxx Companies, Inc. or its successor in
interest.
Stated
Principal Balance: As to each Servicing Retained Mortgage Loan as of any
date of determination, (i) the scheduled principal balance of the Mortgage
Loan
as of the Cut-off Date after giving effect to payments of principal due on
or
before such date, whether or not collected from the Mortgagor on or before
such
date, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal. With respect to each Servicing Released Mortgage Loan as
of any date of determination, (i) the principal balance of the Mortgage Loan
as
of the Cut-off Date after giving effect to payments of principal received on
or
before such date, minus (ii) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries
of
principal.
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Servicer or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Servicer under this
Agreement or any applicable Reconstitution Agreement related thereto that are
identified in Item 1122(d) of Regulation AB.
Subservicing
Agreement: The written contract between the Servicer and a Subservicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 11.32 of Exhibit 8 and Section 11.31 of Exhibit
9.
Third-Party
Originator: Each Person, other than a Qualified Correspondent, that
originated Mortgage Loans acquired by the Seller.
Tax
Service Contract: A transferable contract maintained for the
Mortgaged Property with a tax service provider for the purpose of obtaining
current information from local taxing authorities relating to such Mortgaged
Property.
Underwriting
Guidelines: The Seller’s written underwriting guidelines attached
hereto as Exhibit 10 in effect with respect to the Mortgage Loans
purchased by the Purchaser on the Initial Closing Date, which may be amended,
supplemented or modified from time to time thereafter.
Whole
Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is
not
a Securitization Transaction.
SECTION
2. Agreement
to Purchase. The Seller agrees to sell, and the Purchaser agrees
to purchase, from time-to-time, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Confirmation, or in such other amount as agreed by the Purchaser and the Seller
as evidenced by the actual aggregate principal balance of the Mortgage Loans
accepted by the Purchaser on the related Closing Date.
SECTION
3. Mortgage
Loan Schedules. The Seller shall deliver the Mortgage Loan
Schedule for a Mortgage Loan Package to be purchased on a particular Closing
Date to the Purchaser at least five (5) Business Days prior to the related
Closing Date.
SECTION
4. Purchase
Price. (a) The Purchase Price for each Servicing Retained
Mortgage Loan listed on the related Mortgage Loan Schedule shall be the
percentage of par as stated in the related Confirmation (subject to adjustment
as provided therein), multiplied by its Stated Principal Balance as of the
related Cut-off Date. If so provided in the related Confirmation, portions
of
the Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Initial Purchaser shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Servicing Retained Mortgage Loan as of the related Cut-off Date at
its
Net Mortgage Rate from the related Cut-off Date through the day prior to the
related Closing Date, both inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Servicing
Retained Mortgage Loan purchased, (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected after
the
related Cut-off Date (provided, however, that all scheduled payments of
principal due on or before the related Cut-off Date and collected by the Seller
after the related Cut-off Date shall belong to the Seller), and (3) all payments
of interest on the Servicing Retained Mortgage Loans net of the Servicing Fee
(minus that portion of any such interest payment that is allocable to the period
prior to the related Cut-off Date). The Stated Principal Balance of each
Servicing Retained Mortgage Loan as of the related Cut-off Date is determined
after application to the reduction of principal of payments of principal due
on
or before the related Cut-off Date whether or not collected. Therefore, for
the
purposes of this Agreement, payments of scheduled principal and interest prepaid
for a Due Date beyond the related Cut-off Date shall not be applied to the
principal balance as of the related Cut-off Date. Such prepaid amounts (minus
the applicable Servicing Fee) shall be the property of the Purchaser. The
Servicer shall deposit any such prepaid amounts into the Custodial Account,
which account is established for the benefit of the Purchaser, for remittance
by
the Servicer to the Purchaser on the first related Distribution Date. All
payments of principal and interest, less the applicable Servicing Fee, due
on a
Due Date following the related Cut-off Date shall belong to the
Purchaser.
(b) The
Purchase Price for each Servicing Released Mortgage Loan listed on the related
Mortgage Loan Schedule shall be the percentage of par as stated in the related
Confirmation (subject to adjustment as provided therein), multiplied by its
Stated Principal Balance as of the related Cut-off Date. If so provided in
the
related Confirmation, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Initial Purchaser shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Servicing Released Mortgage Loan as of the related Cut-off Date at
its
Mortgage Interest Rate, net of the Servicing Fee, from the related
Cut-off Date through the day prior to the related Closing Date, both
inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Servicing
Released Mortgage Loan purchased, (1) all recoveries of principal
collected after the related Cut-off Date and (2) all payments of interest on
the
Mortgage Loans net of the Servicing Fee during the Interim Servicing
Period.
SECTION
5. Examination
of Mortgage Files. In addition to the rights granted to the
Initial Purchaser under the related Confirmation to underwrite the Mortgage
Loans and review the Mortgage Files prior to the Closing Date, prior to the
related Closing Date, the Seller shall (a) deliver to the Purchaser or its
designee in escrow, for examination with respect to each Mortgage Loan to be
purchased on such Closing Date, the related Mortgage File on diskette or compact
disk, including the Assignment of Mortgage, pertaining to each Mortgage Loan,
or
(b) make the related Mortgage File available to the Initial Purchaser for
examination at the Seller’s offices or such other location as shall otherwise be
reasonably agreed upon by the Initial Purchaser and the Seller. Such examination
may be made by the Initial Purchaser or its designee at any reasonable time
before or after the related Closing Date. If the Initial Purchaser makes such
examination prior to the related Closing Date and identifies any Mortgage Loans
that do not conform to the terms of the related Confirmation or the Seller’s
Underwriting Guidelines, such Mortgage Loans may, at the Initial Purchaser’s
option, be rejected for purchase by the Initial Purchaser. If not
purchased by the Initial Purchaser, such Mortgage Loans shall be deleted from
the related Mortgage Loan Schedule. The Initial Purchaser may, at its option
and
without notice to the Seller, purchase all or part of any Mortgage Loan Package
without conducting any partial or complete examination. The fact that the
Initial Purchaser has conducted or has determined not to conduct any partial
or
complete examination of the Mortgage Files shall not affect the Initial
Purchaser’s (or any of its successors’) rights to demand repurchase or other
relief or remedy provided for in this Agreement.
The
Initial Purchaser shall have the opportunity to conduct a corporate due
diligence of the Seller, including but not limited to, on site review of the
Seller's facilities and discussions with the Seller's management. The Initial
Purchaser may conduct such review prior to or following the Initial Closing
Date. In addition, the Initial Purchaser may perform additional
reviews as the Initial Purchaser, as mutually agreed between the
parties.
SECTION
6. Conveyance
from Seller to Initial Purchaser.
Subsection
6.01. Conveyance
of Mortgage Loans; Possession of Servicing Files.
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Initial Purchaser an Assignment and Conveyance with respect
to
the related Mortgage Loan Package in the form attached hereto as Exhibit
4. The Servicing File retained by the Servicer with respect to each Mortgage
Loan pursuant to this Agreement shall be appropriately identified in the
Servicer’s computer system to reflect clearly the sale of such related Mortgage
Loan to the Purchaser. The Servicer shall release from its custody the contents
of any Servicing File retained by it only in accordance with this Agreement,
except when such release is required in connection with a repurchase of any
such
Mortgage Loan pursuant to Subsection 7.03 or 7.04.
Subsection
6.02. Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, the Purchaser or one or more designees
of the Purchaser, as the Purchaser shall designate. Record title to each
Mortgage and the related Mortgage Note shall be transferred by Seller to
Purchaser. Seller shall, with respect to any Mortgage Loan not registered with
the MERS System, at the option of Purchaser, either (i) prepare and cause to
be
recorded the Assignment of Mortgage for each Mortgage Loan and shall, promptly
upon its receipt of each original recorded Assignment of Mortgage from the
applicable recording office, deliver the same to Purchaser, or (ii) prepare
and
deliver to Purchaser an original Assignment of Mortgage from Seller to Purchaser
or in blank. Seller shall bear the cost and expense related to (i) providing
all
Assignments of Mortgages and endorsements of Mortgage Notes for any transfer
of
record title required hereunder with respect to the obligations of the Mortgage
Notes and the underlying security interest related to each Mortgage Loan and
(ii) recording fees and fees for title policy endorsements. In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will cause, at the Seller’s expense, the MERS System to indicate that such
Mortgage Loans have been assigned by the Seller to the Purchaser (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) by including in such computer files the information required by
the
MERS System to identify the Purchaser and the series in which such Mortgage
Loans were sold. The Seller further agrees that it will not alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the term
of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
Notwithstanding
the foregoing, beneficial ownership of each Mortgage and the related Mortgage
Note shall be vested solely in the Purchaser or the appropriate designee of
the
Purchaser, as the case may be. All rights arising out of the Mortgage Loans
including, but not limited to, all funds received by the Seller after the
related Cut-off Date on or in connection with a Mortgage Loan as provided in
Section 4 shall be vested in the Purchaser or one or more designees of the
Purchaser; provided, however, that all such funds received on or in connection
with a Mortgage Loan as provided in Section 4 shall be received and held by
the
Seller in trust for the benefit of the Purchaser or the assignee of the
Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to
the terms of this Agreement.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by the Seller
and not a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a debt or other obligation of the Seller. Consequently, the sale of
each Mortgage Loan shall be reflected as a sale on the Seller’s business
records, tax returns and financial statements. In the event, for any reason,
any
transaction contemplated herein is construed by any court or regulatory
authority as a borrowing rather than as a sale, the Seller and the Purchaser
intend that the Purchaser or its assignee, as the case may be, shall have a
perfected first priority security interest in the Mortgage Loans, the Custodial
Account and the proceeds of any and all of the foregoing (collectively, the
“Collateral”), free and clear of adverse claims. In such case, the Seller shall
be deemed to have hereby granted to the Purchaser or its assignee, as the case
may be, a first priority security interest in and lien upon the Collateral,
free
and clear of adverse claims. In such event, the related Confirmation and this
Agreement shall constitute a security agreement, the Custodian shall be deemed
to be an independent custodian for purposes of perfection of the security
interest granted to the Purchaser or its assignee, as the case may be, and
the
Purchaser or its assignee, as the case may be, shall have all of the rights
of a
secured party under applicable law.
Subsection
6.03. Delivery
of Mortgage Loan Documents.
The
Seller shall, at least five (5) Business Days prior to the related Closing
Date,
deliver and release to the Purchaser or its designee the Mortgage Loan Documents
with respect to each Mortgage Loan to be purchased and sold on such Closing
Date
and set forth on the related Mortgage Loan Schedule delivered with such Mortgage
Loan Documents.
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 this Agreement within two weeks
of
their execution, 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 two weeks 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 ninety days of its submission for recordation.
In
the
event that the Seller does not comply with the delivery requirements set forth
in this Section 6.03 with respect to any Mortgage Loan, the related Mortgage
Loan shall, upon request of the Purchaser, be repurchased by the Seller at
the
Repurchase Price in accordance with Section 7.03.
SECTION
7. Representations,
Warranties and Covenants of the Seller; Remedies for Breach.
Subsection
7.01. Representations
and Warranties Respecting the Sellers.
Each
Seller represents, warrants and covenants to the Purchaser as of the Initial
Closing Date and each subsequent Closing Date or as of such date specifically
provided herein or in the applicable Assignment and Conveyance:
(i) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its formation and has all licenses necessary to carry on its
business as now being conducted. It is licensed in, qualified to transact
business in and is in good standing under the laws of the state in which any
Mortgaged Property is located and is and will remain in compliance with the
laws
of each state in which any Mortgaged Property is located to the extent necessary
to ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement. No licenses or
approvals obtained by Seller have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body for any material
violation of such license or approval and no proceedings are pending which
might
result in such suspension or revocation;
(ii) The
Seller has the full power and authority to hold 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. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization or other similar laws affecting the
enforcement of the rights of creditors and general principals of equity, whether
enforcement is sought in a proceeding in equity or at law;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vi) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller shall
retain such record title to each Mortgage, each related Mortgage Note and the
related Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof and only for the purpose of servicing and supervising the
servicing of each Mortgage Loan;
(vii) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative agency or other tribunal (A) that might prohibit its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or the validity or enforceability of,
this
Agreement;
(viii) 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 or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the related Closing Date;
(ix) The
consummation of the transactions contemplated by this Agreement are 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 the bulk transfer or any similar statutory
provisions;
(x) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any material untrue statement of material fact or omits to state a material
fact
necessary to make the statements contained herein or therein not
misleading;
(xi) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Seller, and Seller has determined that, and will treat, the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. Seller shall maintain a complete set of books
and
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by Purchaser;
(xii) The
consideration received by the Seller upon the sale of the Mortgage loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
(xiii) The
Seller is solvent and will not be rendered insolvent by the consummation of
the
transactions contemplated hereby. The Seller is not transferring any
Mortgage loan with any intent to hinder, delay or defraud any of its
creditors;
(xiv) North
Fork is a HUD approved mortgagee pursuant to Section 203 of the National Housing
Act. No event has occurred, including but not limited to a change in insurance
coverage, which would make the North Fork unable to comply with HUD eligibility
requirements or which would require notification to HUD;
(xv) GreenPoint
hereby represents that it is an approved seller/servicer for FNMA and FHLMC
in
good standing and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make GreenPoint unable to comply
with
FNMA, FHLMC or HUD eligibility requirements or which would require notification
to FNMA, FHLMC or HUD; and
(xvi) GreenPoint
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of the
MERS Mortgage Loans for as long as such Mortgage Loans are registered with
MERS.
Subsection
7.02. Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule and the Mortgage
Loan data delivered to the Purchaser on the Data Tape is complete, true and
correct in all material respects;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct;
(iii) All
payments required to be made up to the close of business on the Closing Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
the
Mortgage Note or Mortgage. No payment under the Mortgage Loan has
been delinquent at any time since the origination of the Mortgage
Loan;
(iv) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(v) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and is improved by a Residential Dwelling;
(vi) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office or registered with the MERS System if
necessary to maintain the lien priority of the Mortgage, and which have been
delivered to the Purchaser; the substance of any such waiver, alteration or
modification has been approved by the insurer under the Primary Insurance Policy
or LPMI Policy, if any, and the title insurer, to the extent required by the
related policy, and is reflected on the related Mortgage Loan Schedule. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, except in connection with
an
assumption agreement approved by the insurer under the Primary Insurance Policy
or LPMI Policy, if any, the title insurer, to the extent required by the policy,
and which assumption agreement has been delivered to the Purchaser and the
terms
of which are reflected in the related Mortgage Loan Schedule;
(vii) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
reformation, set off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and/or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
reformation, set off, counterclaim or defense, including the defense of usury
and no such right of rescission, reformation, set off, counterclaim or defense
has been asserted with respect thereto, and there is no basis for the Mortgage
Loan to be modified or reformed without the consent of the Mortgagor under
applicable law. Each Prepayment Charge or penalty with respect to any
Mortgage Loan is permissible, enforceable and collectible under applicable
federal, state and local law;
(viii) All
buildings upon the Mortgaged
Property are insured by a Qualified Insurer acceptable to FNMA and FHLMC against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, in an amount
not
less than the lesser of (i) 100% of the replacement cost of all improvements
to
the Mortgaged Property and (ii) either (A) the outstanding principal balance
of
the Mortgage Loan with respect to each first lien Mortgage Loan (including
any
cumulative related Negative Amortization) or (B) with respect to each Second
Lien Mortgage Loan, the sum of the outstanding principal balance of the related
first lien mortgage loan and the outstanding principal balance of the Second
Lien Mortgage Loan ; provided, however, in no event shall the amount of
insurance be less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property. All such
insurance policies contain a standard mortgagee clause naming the Servicer,
its
successors and assigns as mortgagee and all premiums thereon have been
paid. If the Mortgaged Property is in an area identified on a Flood
Hazard Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance
has
been made available) a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect which
policy conforms to the requirements of FNMA and FHLMC and in an amount not
less
than the greater of (i) lesser of (a) 100% of the replacement cost of all
improvements to the Mortgaged Property and (b) either (A) the outstanding
principal balance of the Mortgage Loan with respect to each first lien Mortgage
Loan (plus the maximum amount of Negative Amortization in accordance with the
Mortgage) or (B) with respect to each Second Lien Mortgage Loan, the sum of
the
outstanding principal balance of the related first lien mortgage loan and the
outstanding principal balance of the Second Lien Mortgage Loan and (ii) the
maximum amount of insurance which is available under the National
Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended; provided, however, in no event shall the amount of insurance be less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property. 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 Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor;
(ix) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, fair housing, disclosure laws
and
all predatory, abusive and fair lending laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans have been
complied with and the consummation of the transactions contemplated hereby
will
not involve the violation of any such laws, and the Seller shall maintain in
its
possession, available for the inspection of the Purchaser or its designee,
and
shall deliver to the Purchaser or its designee, upon two Business Days’ request,
evidence of compliance with such requirements;
(x) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, 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 satisfaction, cancellation, subordination, rescission
or
release;
(xi) The
related Mortgage is properly recorded and is a valid, existing and enforceable
(A) first lien and first priority security interest with respect to each
Mortgage Loan which is indicated by the Seller to be a First Lien (as reflected
on the Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a Second Lien (as reflected on the Mortgage Loan Schedule), in either case,
on the Mortgaged Property, including all improvements on the Mortgaged Property
subject only to (a) the lien of current real property taxes and assessments
not
yet due and payable, (b) covenants, conditions and restrictions, rights of
way,
easements and other matters of the public record as of the date of recording
being acceptable to mortgage lending institutions generally and specifically
referred to in the lender’s title insurance policy delivered to the originator
of the Mortgage Loan and which do not adversely affect the Appraised Value
of
the Mortgaged Property, (c) 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 and (d) with respect to each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
(as reflected on the Mortgage Loan Schedule) a First Lien on the 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, existing and enforceable (A) first lien and
first priority security interest with respect to each Mortgage Loan which is
indicated by the Seller to be a First Lien (as reflected on the Mortgage Loan
Schedule) or (B) second lien and second priority security interest with respect
to each Mortgage Loan which is indicated by the Seller to be a Second Lien
Mortgage Loan (as reflected on the Mortgage Loan Schedule), in either case,
on
the property described therein and the Seller has full right to sell and assign
the same to the Purchaser. The Mortgaged Property was not, as of the
date of origination of the Mortgage Loan, subject to a mortgage, deed of trust,
deed to secure debt or other security instrument creating a lien subordinate
to
the lien of the Mortgage;
(xii) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms except as enforceability is limited by bankruptcy, insolvency or
reorganization or other similar laws affecting the enforcement of the rights
of
creditors and general principals of equity, whether enforcement is sought in
a
proceeding in equity or at law;
(xiii) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(xiv) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making
or closing the Mortgage Loan and the recording of the Mortgage have been paid,
and the Mortgagor is not entitled to any refund of any amounts paid or due
to
the Mortgagee pursuant to the Mortgage Note or Mortgage;
(xv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage. The Seller has full right and authority under all
governmental and regulatory bodies having jurisdiction over such Seller, subject
to no interest or participation of, or agreement with, any party, to transfer
and sell the Mortgage Loan to the Purchaser pursuant to this Agreement free
and
clear of any encumbrance or right of others, equity, lien, pledge, charge,
mortgage, claim, participation interest or security interest of any nature
(collectively, a “Lien”); and immediately upon the transfers and assignments
herein contemplated, the Seller shall have transferred and sold all of its
right, title and interest in and to each Mortgage Loan and the Purchaser will
hold good, marketable and indefeasible title to, and be the owner of, each
Mortgage Loan subject to no Lien;
(xvi) All
parties which have had any interest in the Mortgage Loan, whether as originator,
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were): (A) organized under the laws
of
such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices in
such
state, or (D) not doing business in such state so as to require qualification
or
licensing, or (E) not otherwise required to be licensed in such
state. All parties which have had any interest in the Mortgage Loan
were in compliance with any and all applicable “doing business” and licensing
requirements of the laws of the state wherein the Mortgaged Property is located
or were not required to be licensed in such state;
(xvii) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) ALTA
lender’s title insurance policy (which, in the case of an Adjustable Rate
Mortgage Loan has an adjustable rate mortgage endorsement in the form of ALTA
6.0 or 6.1), issued by a title insurer acceptable to FNMA and FHLMC and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring (subject to the exceptions contained above in (xi)(a) and
(b)
and, with respect to each Mortgage Loan which is indicated by the Seller to
be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) clause
(d)) the Seller, its successors and assigns as to the first priority lien of
the
Mortgage in the original principal amount of the Mortgage Loan and, with respect
to any Adjustable Rate Mortgage Loan, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of
the
Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property,
and
against encroachments by or upon the Mortgaged Property or any interest
therein. The Seller is the sole insured of such lender’s title
insurance policy, 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;
(xviii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the 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 of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration. With
respect to each Mortgage Loan which is indicated by the Seller to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) (i) the First
Lien is in full force and effect, (ii) there is no default, breach, violation
or
event of acceleration existing under such First Lien mortgage or the related
mortgage note, (iii) 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 of acceleration thereunder, and either (A) the First Lien
mortgage contains a provision which allows or (B) applicable law requires,
the
mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords
such mortgagee an opportunity to cure any default by payment in full or
otherwise under the First Lien mortgage;
(xix) 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 lien) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xx) All
improvements which were considered in determining the Appraised Value of the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xxi) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
(xxii) Payments
on the Mortgage Loan shall commence (with respect to any newly originated
Mortgage Loans) or commenced no more than sixty days after the proceeds of
the
Mortgage Loan were disbursed. The Mortgage Loan bears interest at the
Mortgage Interest Rate. With respect to each Mortgage Loan, the
Mortgage Note is payable on the first day of each month in Monthly Payments,
which, (A) in the case of a Fixed Rate Mortgage Loan, are sufficient to fully
amortize the original principal balance over the original term thereof and
to
pay interest at the related Mortgage Interest Rate, and (B) in the case of
an
Adjustable Rate Mortgage Loan, are changed on each Adjustment Date, and in
any
case, are sufficient to fully amortize the original principal balance over
the
original term thereof and to pay interest at the related Mortgage Interest
Rate. The Index for each Adjustable Rate Mortgage Loan is as defined
in the related Mortgage Loan Schedule. With respect to each Mortgage
Loan identified on the Mortgage Loan Schedule as an interest-only Mortgage
Loan,
the interest-only period shall not exceed the period specified on the Mortgage
Loan Schedule and following the expiration of such interest-only period, the
remaining Monthly Payments shall be sufficient to fully amortize the original
principal balance over the remaining term of the Mortgage Loan. The
Mortgage Note does not permit negative amortization. No Mortgage Loan
is a Convertible Mortgage Loan;
(xxiii) The
origination practices used by the Seller and the collection practices used
by
the Servicer, with respect to each Mortgage Note and Mortgage have been in
all
respects legal, proper, prudent and customary in the mortgage origination and
servicing industry. The Mortgage Loan has been serviced by the
Servicer and any predecessor servicer in accordance with all applicable laws,
rules and regulations, the terms of the Mortgage Note and Mortgage, and the
FNMA
and FHLMC servicing guides. With respect to escrow deposits and
Escrow Payments (other than with respect to each Mortgage Loan which is
indicated by the Seller to be a Second Lien Mortgage Loan and for which the
mortgagee under the First Lien is collecting Escrow Payments (as reflected
on
the Mortgage Loan Schedule)), if any, all such payments are in the possession
of, or under the control of, the Servicer and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have
not been made. No escrow deposits or Escrow Payments or other charges
or payments due the Seller have been capitalized under any Mortgage or the
related Mortgage Note and no such escrow deposits or Escrow Payments are being
held by the Servicer for any work on a Mortgaged Property which has not been
completed;
(xxiv) The
Mortgaged Property is free of damage and waste and is in good repair, and there
is no proceeding pending or, to the best of the Seller’s knowledge, threatened
for the total or partial condemnation thereof nor is such a proceeding currently
occurring;
(xxv) The
Mortgage and related Mortgage Note contain 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, (a) in the case of a Mortgage designated as a
deed
of trust, by trustee’s sale, and (b) otherwise by judicial
foreclosure. The Mortgaged Property has not been subject to any
bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed
for protection under applicable bankruptcy laws. 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;
(xxvi) The
Mortgagor has not notified the Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act;
(xxvii) The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
of
the Seller in effect at the time the Mortgage Loan was originated; and the
Mortgage Note and Mortgage are on forms acceptable to FNMA and
FHLMC;
(xxviii) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(xi) above;
(xxix) The
Mortgage File contains an appraisal of the related Mortgaged Property which,
(a)
with respect to First Lien Mortgage Loans, was on appraisal form 1004 or form
2055 with an interior inspection, or (b) with respect to Second Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior only inspection,
and (c) with respect to (a) or (b) above, was made and signed, prior to the
approval of the Mortgage Loan application, by a qualified 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, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of FNMA and FHLMC. Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(xxx) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxxi) No
Mortgage Loan is a Buydown Mortgage Loan.
(xxxii) The
Mortgage Loan is not a graduated payment mortgage loan or a balloon Mortgage
Loan, and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature;
(xxxiii) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxxiv) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxv) 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 can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, cause
the
Mortgage Loan to not be paid in full when due, or adversely affect the value
of
the Mortgage Loan;
(xxxvi) With
respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than
80%, the Mortgage Loan will be insured by a Primary Insurance Policy, issued
by
a Qualified Insurer, which insures that portion of the Mortgage Loan in excess
of the portion of the Appraised Value of the Mortgaged Property required by
FNMA. All provisions of such Primary Insurance Policy have been and
are being complied with, such policy is in full force and effect, and all
premiums due there under have been paid. Any Mortgage subject to any
such Primary Insurance Policy obligates the Mortgagor there under to maintain
such insurance and to pay all premiums and charges in connection
therewith. The Mortgage Interest Rate for the Mortgage Loan does not
include any such insurance premium. If a Mortgage Loan is identified
on the Mortgage Loan Schedule as subject to a Lender Paid Mortgage Insurance
Policy, such policy insures that portion of the Mortgage Loan set forth in
the
LPMI Policy. All provisions of any such LPMI Policy have been and are
being complied with, such policy is in full force and effect, and all premiums
due there under have been paid. The Mortgage Interest Rate for the
Mortgage Loan does not include the insurance premium for any LPMI
Policy;
(xxxvii) The
Mortgaged Property is lawfully occupied under applicable law; 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. No improvement located on or being part of
any Mortgaged Property is in violation of any applicable zoning and subdivision
law, ordinance or regulation;
(xxxviii) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxix) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded, or
are
in the process of being recorded, in the appropriate jurisdictions wherein
such
recordation is necessary to perfect the lien thereof as against creditors of
the
Seller. As to any Mortgage Loan which is not a MERS Mortgage Loan, 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;
(xl) Any
principal advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term reflected on the Mortgage Loan Schedule. The
lien of the Mortgage securing the consolidated principal amount is expressly
insured as having (A) first lien priority with respect to each Mortgage Loan
which is indicated by the Seller to be a First Lien (as reflected on the
Mortgage Loan Schedule), or (B) second lien priority with respect to each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
(as reflected on the Mortgage Loan Schedule), in either case, by a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to FNMA and
FHLMC. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(xli) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of FNMA and FHLMC;
(xlii) Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance
Code. With respect to each Texas Refinance Loan that is a Cash Out
Refinancing, the related Mortgage Loan Documents state that the Mortgagor may
prepay such Texas Refinance Loan in whole or in part without incurring a
Prepayment Charge. The Seller does not collect any such Prepayment
Charges in connection with any such Texas Refinance Loan;
(xliii) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xliv) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor, to the Seller’s knowledge, the related
Mortgagor, has received any notice of any violation or potential violation
of
such law;
(xlv) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered by
a
“life of loan” Tax Service Contract which is assignable to the Purchaser or its
designee at no cost to the Purchaser or its designee; provided however, that
if
the Seller fails to purchase such Tax Service Contract, the Seller shall be
required to reimburse the Purchaser for all costs and expenses incurred by
the
Purchaser in connection with the purchase of any such Tax Service
Contract;
(xlvi) Each
Mortgage Loan is covered by a “life of loan” Flood Zone Service Contract which
is assignable to the Purchaser or its designee at no cost to the Purchaser
or
its designee or, for each Mortgage Loan not covered by such Flood Zone Service
Contract, the Seller agrees to purchase such Flood Zone Service
Contract;
(xlvii) None
of
the Adjustable Rate Mortgage Loans include an option to convert to a Fixed
Rate
Mortgage Loan;
(xlviii) No
selection procedures were used by the Seller that identified the Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans in
the
Seller’s portfolio;
(xlix) The
Loan-to-Value Ratio of any Mortgage Loan at origination was not more than 95%
and the CLTV of any Mortgage Loan at origination was not more than
100%;
(l) Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(li) No
Mortgage Loan is (a) subject to the provisions of the Home Ownership and Equity
Protection Act of 1994 as amended (“HOEPA”), or has an “annual percentage rate”
or “total points and fees” payable by the borrower (as each such term is defined
under HOEPA) that equals or exceeds the applicable thresholds defined under
HOEPA (Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii)),
(b) a “high cost” mortgage loan, “covered” mortgage loan (excluding home loans
defined as “covered home loans” in the New Jersey Home Ownership Security Act of
2002 that were originated between November 26, 2003 and July 7, 2004), “high
risk home” mortgage loan, or “predatory” mortgage loan or any other comparable
term, no matter how defined under any federal, state or local law, provided
that
this determination shall be made with respect to the relevant state or local
law, regardless of the effect of any available federal preemption, other than
exemptions specifically provided for in the relevant state or local law, (c)
subject to any comparable federal, state or local statutes or regulations,
or
any other statute or regulation providing for heightened regulatory scrutiny,
assignee liability to holders of such mortgage loans or additional legal
liability for mortgage loans having high interest rates, points and/or fees,
or
(d) a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in the current Standard & Poor’s LEVELS® Glossary Revised, Appendix
E);
(lii) Each
Mortgage Loan has a valid and original Credit Score, with a minimum Credit
Score
as set forth in the related Commitment Letter;
(liii) No
Mortgage Loan had an original term to maturity of more than thirty (30)
years;
(liv) No
Mortgagor is the obligor on more than two Mortgage Notes;
(lv) Each
Mortgage contains a provision for the acceleration of the payment of the unpaid
principal balance of the related Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(lvi) With
respect to each Mortgage Loan which is a Second Lien, (i) the related first
lien
does not provide for negative amortization, and (ii) either no consent for
the
Mortgage Loan is required by the holder of the first lien or such consent has
been obtained and is contained in the Mortgage File;
(lvii) [Reserved];
(lviii) The
Mortgage Loan Documents with respect to each Mortgage Loan subject to Prepayment
Charges specifically authorizes such Prepayment Charges to be collected, such
Prepayment Charges are permissible and enforceable in accordance with the terms
of the related Mortgage Loan Documents and all applicable federal, state and
local laws (except to the extent that the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally or the collectability thereof may be
limited due to acceleration in connection with a foreclosure) and each
Prepayment Charge was originated in compliance with all applicable federal,
state and local laws;
(lix) Except
with respect to Mortgage Loans originated by North Fork, with respect to any
Mortgage Loan that contains a provision permitting imposition of a Prepayment
Charge upon a Principal Prepayment prior to maturity: (i) prior to the Mortgage
Loan’s origination, the Mortgagor agreed to such Prepayment Charge in exchange
for a monetary benefit, including but not limited to a Mortgage Interest Rate
or
fee reduction, (ii) prior to the Mortgage Loan’s origination, the Mortgagor was
offered the option of obtaining a Mortgage Loan that did not require payment
of
a Prepayment Charge and the originator of the Mortgage Loan had a written policy
of offering borrowers, or requiring third-party brokers to offer borrowers,
the
option of obtaining a mortgage loan that did not require the payment of a
Prepayment Charge, (iii) the Prepayment Charge is disclosed to the Mortgagor
in
the Mortgage Loan Documents pursuant to state and federal law, (iv) for Mortgage
Loans originated on or after October 1, 2002, the duration of the prepayment
period shall not exceed three (3) years from the date of the Mortgage Note,
unless the Mortgage Loan was modified to reduce the prepayment period to no
more
than three years from the date of the Mortgage Note and the Mortgagor was
notified in writing of such reduction in the prepayment period, (v) no Mortgage
Loan originated prior to October 1, 2002 has a Prepayment Charge longer than
five years and (vi) notwithstanding any state or federal law to the contrary,
the Seller shall not impose such Prepayment Charge in any instance when the
Mortgage Loan is accelerated or paid off in connection with the workout of
a
delinquent mortgage or due to the Mortgagor’s default. Each
Prepayment Charge is permissible, collectable and enforceable;
(lx) No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, mortgage, disability, accident, unemployment, property or health
insurance product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g. life, mortgage, disability, accident,
unemployment, or health insurance product) in connection with the origination
of
the Mortgage Loan, and no proceeds from any Mortgage Loan were used to purchase
single-premium credit insurance policies or debt cancellation agreements as
part
of the origination of, or as a condition to closing, such Mortgage
Loan;
(lxi) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home
Loan” as defined in the Georgia Fair Lending Act, as amended (the “Georgia
Act”). Each Mortgage Loan that is a “Home Loan” under the
Georgia Act complies with all applicable provisions of the Georgia Act. No
Mortgage Loan secured by owner occupied real property or an owner occupied
manufactured home located in the State of Georgia was originated (or modified)
on or after October 1, 2002 through and including March 6, 2003;
(lxii) The
Servicer and any predecessor servicer has fully furnished, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories) on a monthly basis; and the Seller will fully furnish,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Credit Information
Company (three of the credit repositories), on a monthly basis;
(lxiii) No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no tangible net benefit to the Mortgagor, were employed in connection
with the origination of the Mortgage Loan. Each Mortgage Loan is in
compliance with the anti-predatory lending eligibility for purchase requirements
of FNMA’s Selling Guide;
(lxiv) No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no tangible net benefit to the Mortgagor, were employed in connection
with the origination of the Mortgage Loan. Each Mortgage Loan is in
compliance with the anti-predatory lending eligibility for purchase requirements
of FNMA’s Selling Guide;
(lxv) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”). The Seller has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws; no Mortgage Loan is subject to nullification pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(lxvi) No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Seller which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the related Mortgage Loan’s origination, such
Mortgagor did not qualify taking into account credit history and debt to income
ratios for a lower cost credit product then offered by the Seller or any
affiliate of the Seller. If, at the time of the related loan
application, the Mortgagor may have qualified for a lower cost credit product
then offered by any mortgage lending affiliate of the Seller, the Seller
referred the Mortgagor’s application to such affiliate for underwriting
consideration;
(lxvii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely payments
on the Mortgage Loan;
(lxviii) Except
with respect to Mortgage Loans originated by North Fork, all points, fees and
charges, including finance charges (whether or not financed, assessed, collected
or to be collected), in connection with the origination and servicing of any
Mortgage Loan were disclosed in writing to the related Mortgagor in accordance
with state and federal laws and regulations and no related Mortgagor was charged
“points and fees” (whether or not financed) in an amount that exceeds the
greater of (1) 5% of the principal amount of such loan or (2)
$1,000. For the purposes of this representation, “points and fees”
(a) include origination, underwriting, broker and finder’s fees and charges that
the lender imposed as a condition of making the Mortgage Loan, whether they
are
paid to the lender or a third party; and (b) exclude bona fide discount points,
fees paid for actual services rendered in connection with the origination of
the
Mortgage Loan (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections) and the cost of mortgage insurance
or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges, which miscellaneous fees and charges in total, do not exceed 0.25
percent of the loan amount);
(lxix) The
Servicer will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Company agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxx) No
Mortgage Loan is a “manufactured housing loan” pursuant to the NJ Act, and one
hundred percent of the amount financed of any purchase money Second Lien
Mortgage Loan subject to the NJ Act was used for the purchase of the related
Mortgaged Property;
(lxxi) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and such
MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(lxxii) With
respect to each MERS Mortgage Loan, the Seller has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(lxxiii) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan;
(lxxiv) With
respect to any Mortgage Loan for which a mortgage loan application was submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured by a
Mortgage Property located in the State of Illinois is in violation of the
provisions of the Illinois Interest Act, including Section 4.1a which provides
that no such Mortgage Loan with a Mortgage Interest Rate in excess of 8.0%
per
annum has lender-imposed fees (or other charges) in excess of 3.0% of the
original principal balance of the Mortgage Loan;
(lxxv) No
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor
as
a lessee under a ground lease of the related Mortgaged Property;
(lxxvi) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth of
Massachusetts was made to pay off or refinance an existing loan or other debt
of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House Xxxx 4880 (2004)) unless either (1) (a) the related Mortgage
Interest Rate (that would be effective once the introductory rate expires,
with
respect to Adjustable Rate Mortgage Loans) did or would not exceed by more
than
2.25% the yield on United States Treasury securities having comparable periods
of maturity to the maturity of the related Mortgage Loan as of the fifteenth
day
of the month immediately preceding the month in which the application for the
extension of credit was received by the related lender or (b) the Mortgage
Loan
is an “open-end home loan” (as such term is used in the Massachusetts House Xxxx
4880 (2004)) and the related Mortgage Note provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
The Wall Street Journal plus a margin of one percent, or (2) such Mortgage
Loan
is in the "borrower's interest," as documented by a "borrower's interest
worksheet" for the particular Mortgage Loan, which worksheet incorporates the
factors set forth in Massachusetts House Xxxx 4880 (2004) and the regulations
promulgated thereunder for determining "borrower's interest," and otherwise
complies in all material respects with the laws of the Commonwealth of
Massachusetts;
(lxxvii) The
Mortgage Loan Documents and any other documents required to be delivered with
respect to each Mortgage Loan have been delivered to the Purchaser all in
compliance with the specific requirements of this Agreement; and
(lxxviii) No
Mortgage Loan secured by a Mortgaged Property in the State of Ohio which closed
on or after January 1, 2007 was originated pursuant to a no income/no asset
documentation program or any other program pursuant to which the related
Mortgagor was not required to disclose income. Each Mortgage Loan secured by
a
Mortgaged Property in the State of Ohio which closed on or after January 1,
2007, was originated in compliance with the Ohio Consumer Sales Practices Act
(Oh. Rev. Stat. 1345.01 et seq.) and the regulations promulgated thereunder
and
was made only after reasonable and appropriate methods were used to determine
the borrower's repayment ability, including without limitation, employment
verification for stated income loans, which have been properly documented and
verified.
Subsection
7.03. Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser 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 the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties (notwithstanding any representation and warranty
given to the best of Seller’s knowledge) which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser (or which
materially and adversely affects the interests of the Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within
60
days (or with respect to a breach of Section 7.02(lxx), within ten (10) days)
of
the earlier of either discovery by or notice to the Seller of any breach of
a
representation or warranty which materially and adversely affects the value
of a
Mortgage Loan or the Mortgage Loans, the Seller shall use its best efforts
promptly to cure such breach in all material respects and, if such breach cannot
be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Repurchase Price within two (2) Business Days following the
expiration of the related cure period. In the event that a breach shall involve
any representation or warranty set forth in Subsection 7.01 and such breach
cannot be cured within 60 days of the earlier of either discovery by or notice
to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser’s option, be repurchased by the Seller at the Repurchase
Price. With respect to any representations and warranties made by the
Seller, in the event that it is discovered that the circumstances with respect
to the Mortgage Loan are not accurately reflected in such representation and
warranty notwithstanding the actual knowledge or lack of knowledge of Seller,
then, notwithstanding that such representation and warranty is made “to the best
of the Seller’s knowledge,” or in reliance on or based on other information,
there shall be a breach of such representation and Seller shall cure such breach
or repurchase the affected Mortgage Loan as provided in this Subsection
7.03. The Seller shall, at the request of the Purchaser and assuming
that Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its
place a Qualified Substitute Mortgage Loan or Loans; provided that such
substitution shall be effected not later than 120 days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it
shall repurchase the deficient Mortgage Loan. Notwithstanding
anything to the contrary contained herein, it is understood by the parties
hereto that a breach of the representations and warranties made in Subsections
7.02(v), (ix), (xxxvi), (li), (lix), (lx), (lxi), (lxii), (lxiii), (lxvii),
(lxix) or (lxxii) will be deemed to materially and adversely affect the value
of
the related Mortgage Loan or the interest of the Purchaser therein.
Any
repurchase of a Servicing Retained Mortgage Loan(s) pursuant to the foregoing
provisions of this Subsection 7.03 shall occur on a date designated by the
Purchaser and shall be accomplished by deposit in the Custodial Account of
the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Distribution Date. Any repurchase of a Servicing Released Mortgage
Loan(s) pursuant to the foregoing provisions of this Subsection 7.03 shall
occur
on a date designated by the Purchaser and shall be accomplished (i) during
the
Interim Servicing Period by deposit in the Custodial Account of the amount
of
the Repurchase Price for distribution to the Purchaser on the next scheduled
Distribution Date and (ii) following the Interim Servicing Period by wire
transfer of immediately available funds on the repurchase date to an account
designated by the Purchaser.
At
the
time of repurchase of any deficient Mortgage Loan, the Purchaser and the Seller
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Purchaser
relating to the repurchased Mortgage Loan. In the event the Repurchase Price
is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken
place. Upon such repurchase the related Mortgage Loan Schedule shall
be amended to reflect the withdrawal of the repurchased Mortgage Loan from
this
Agreement.
If
the
Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller
shall either (i) cause MERS to execute and deliver an Assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Company and shall
cause such Mortgage to be removed from registration on the MERS System in
accordance with MERS’ rules and regulations or (ii) cause MERS to designate on
the MERS System the Seller or its designee as the beneficial holder of such
Mortgage Loan.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are required by this Agreement, with the Mortgage Note
endorsed as required therein. The Seller shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan or Loans in the month following the date
of
such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution will be retained by
the
Seller. For the month of substitution, distributions to the Purchaser
will include the Monthly Payment due on such Deleted Mortgage Loan in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received by the Seller in respect of such Deleted Mortgage
Loan. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage
Loan. Upon such substitution, such Qualified Substitute Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Seller shall be deemed to have made with respect to such Qualified
Substitute Mortgage Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Sections 7.01 and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller will determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of
substitution). An amount equal to the product of the amount of such
shortfall multiplied by the Repurchase Price shall be distributed by the Seller
in the month of substitution pursuant to the Servicing
Addendum. Accordingly, on the date of such substitution, the Seller
will deposit from its own funds into the Custodial Account an amount equal
to
such amount.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any out of pocket losses,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in this Section 7. It is
understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03 to cure, substitute for or repurchase a defective Mortgage
Loan
and to indemnify the Purchaser as provided in this Subsection 7.03 constitute
the sole remedies of the Purchaser respecting a breach of the foregoing
representations and warranties. The indemnification obligation of the
Seller set forth herein shall survive the termination of this
Agreement.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 or 7.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser, (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 the relevant
provisions of this Agreement.
In
addition to the foregoing, within 60 days of the earlier of discovery by Sellers
or receipt of notice by Sellers of a breach of any representation of any Seller
which materially and adversely affects the interests of any Prepayment
Charge, the Sellers shall pay the amount of the scheduled Prepayment Charge
to
the Purchaser.
Subsection
7.04. Prepayment-in-Full
Premium Recapture.
In
the
event that any Mortgage Loans prepay-in-full within three (3) months of the
related Closing Date, the Seller shall remit to the Purchaser within thirty
(30)
days following receipt of notice from the Purchaser of a prepayment-in-full,
the
greater of (i) an amount equal to the product of (A) the excess of the related
purchase price percentage over 100% and (B) the Stated Principal Balance of
such
prepaid Mortgage Loan as of the related Closing Date or (ii) the amount of
any
prepayment penalty fees paid with respect to such Mortgage Loan.
Subsection
7.05. Early
Payment Default.
In
the
event that any Mortgagor fails to make the first or second scheduled Monthly
Payment due on a Mortgage Loan or due to Purchaser within the calendar month
such payment is due, Seller shall repurchase such Mortgage Loan at the
Repurchase Price within thirty (30) days following receipt of notice from the
Purchaser of such payment default.
SECTION
8. Closing. The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Purchaser’s option, 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 each Closing Date shall be
subject to each of the following conditions:
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(a)
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all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this
Agreement;
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(b)
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the
Initial Purchaser shall have received, or the Initial Purchaser’s
attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, 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;
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(c)
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the
Seller shall have delivered and released to the Purchaser all documents
required pursuant to this Agreement;
and
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(d)
|
all
other terms and conditions of this Agreement shall have been complied
with.
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Subject
to the foregoing conditions, the Initial Purchaser shall pay to the Seller
on
the related Closing Date the Purchase Price, plus accrued interest pursuant
to
Section 4, by wire transfer of immediately available funds to the account
designated by the Seller. The Purchaser will use its best efforts to
wire funds by 4:00 p.m. Eastern Time on the related Closing Date.
SECTION
9. Closing
Documents.
(a) On
or
before the Initial Closing Date, the Seller shall submit to the Initial
Purchaser fully executed originals of the following documents:
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1.
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this
Agreement, in four counterparts;
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2.
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a
Custodial Account Letter Agreement in the form attached as Exhibit
6 hereto;
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3.
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as
Escrow Account Letter Agreement in the form attached as Exhibit 7
hereto;
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4.
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an
Officer’s Certificate, in the form of Exhibit 1 hereto, including
all attachments thereto;
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5.
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an
Opinion of Counsel to the Seller, in the form of Exhibit 2 hereto;
and
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6.
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the
Seller’s Underwriting Guidelines.
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(b) The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
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1.
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the
related Confirmation;
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2.
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the
related Mortgage Loan Schedule;
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3.
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an
Officer’s Certificate, in the form of Exhibit 1 hereto, including
all attachments thereto;
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4.
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if
requested by the Initial Purchaser, an Opinion of Counsel to the
Seller,
in the form of Exhibit 2
hereto;
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5.
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a
Security Release Certification, in the form of Exhibit 3 hereto
executed by any Person, as requested by the Initial Purchaser, if
any of
the Mortgage Loans has at any time been subject to any security interest,
pledge or hypothecation for the benefit of such
Person;
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6.
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a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable; and
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7.
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an
Assignment and Conveyance in the form of Exhibit 4
hereto.
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(c) In
addition, to the extent that the Underwriting Guidelines are modified, amended
or supplemented at any time following the Initial Closing Date, the Seller
shall
notify the Purchaser of such change and provide the Purchaser a copy in both
electronic and hard copy of such modification, amendment or supplement no later
than five (5) Business Days following the effective date of such modification,
amendment or supplement.
SECTION
10. Costs. The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including without
limitation recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage and the Seller’s attorney’s fees,
shall be paid by the Seller. The Seller shall also pay certain
expenses of the Purchaser’s custodian, including but not limited to, the
custodian’s preparation of trust receipts and certifications.
SECTION
11. Servicer’s
Servicing Obligations. The Servicer, as independent contract
servicer, shall service and administer the Mortgage Loans during the Preliminary
Servicing Period and the Interim Servicing Period, as applicable, in accordance
with the terms and provisions set forth in the Servicing Addendum attached
as
Exhibit 8, or the Servicing Addendum attached as Exhibit 9, as
applicable, which Servicing Addendums are incorporated herein by
reference.
The
Servicer agrees to act reasonably, in good faith and in accordance with all
applicable laws and regulations and to do all things necessary to effect the
transfer of the servicing of the Servicing Released Mortgage Loans to
Purchaser.
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement Upon
a
Whole Loan Transfer or a Securitization Transaction on Oneor More
Reconstitution Dates.
The
Seller and the Initial Purchaser agree that with respect to some or all of
the
Mortgage Loans, the Initial Purchaser may effect either:
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(1)
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one
or more Whole Loan Transfers;
and/or
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(2)
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one
or more Securitization
Transactions.
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With
respect to each Whole Loan Transfer or Securitization Transaction, as the case
may be, entered into by the Initial Purchaser, the Seller agrees:
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(1)
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to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures and
with
respect to the preparation (including, but not limited to, the
endorsement, delivery, assignment, and execution) of the Mortgage
Loan
Documents and other related documents, and with respect to servicing
requirements reasonably requested by the rating agencies and credit
enhancers;
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(2)
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to
execute all Reconstitution Agreements provided that each of the Seller
and
the Purchaser is given an opportunity to review and reasonably negotiate
in good faith the content of such documents not specifically referenced
or
provided for herein;
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(3)
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with
respect to any Whole Loan Transfer or Securitization Transaction,
the
Seller shall make the representations and warranties regarding the
Seller
and the Mortgage Loans as of the date of the Whole Loan Transfer
or
Securitization Transaction (except to the extent any such representation
or warranty is not accurate on such date), modified to the extent
necessary to accurately reflect the passage of time and pool statistics
of
the Mortgage Loans as of the date of such Whole Loan Transfer or
Securitization Transaction and supplemented by additional representations
and warranties that are not unreasonable under the circumstances
as of the
date of such Whole Loan Transfer or Securitization
Transaction;
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(4)
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to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller,
its
financial condition and its mortgage loan delinquency, foreclosure
and
loss experience and any additional information reasonably requested
by the
Purchaser, and to deliver to the Purchaser any similar non public,
unaudited financial information, in which case the Purchaser shall
bear
the cost of having such information audited by certified public
accountants if the Purchaser desires such an audit, or as is otherwise
reasonably requested by the Purchaser and which the Seller is capable
of
providing without unreasonable effort or expense, and to indemnify
the
Purchaser and its affiliates for any material misstatements or omissions
or any alleged misstatements or omissions contained (i) in such
information and (ii) on the Mortgage Loan
Schedule;
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(5)
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to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
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(6)
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to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Securitization Transactions, as the case may be, such
in-house Opinions of Counsel for a Securitization Transaction to
be in the
form reasonably acceptable to the Purchaser, it being understood
that the
cost of any opinions of outside special counsel that may be required
for a
Whole Loan Transfer or Securitization Transaction, as the case may
be,
shall be the responsibility of the
Purchaser;
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(7)
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in
connection with any securitization of any Servicing Retained Mortgage
Loans, to negotiate and execute one or more subservicing agreements
between the Servicer and any master servicer which is generally considered
to be a prudent master servicer in the secondary mortgage market,
designated by the Purchaser in its sole discretion after consultation
with
the Servicer and/or one or more custodial and servicing agreements
among
the Purchaser, the Servicer and a third party custodian/trustee which
is
generally considered to be a prudent custodian/trustee in the secondary
mortgage market designated by the Purchaser in its sole discretion
after
consultation with the Servicer, in either case for the purpose of
pooling
the Mortgage Loans with other Mortgage Loans for resale or
securitization;
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(8)
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in
connection with any securitization of any Servicing Retained Mortgage
Loans, to reasonably negotiate and execute a pooling and servicing
agreement, which pooling and servicing agreement may, at the Purchaser’s
direction, contain contractual provisions including, but not limited
to, a
24-day certificate payment delay (54-day total payment delay), servicer
advances of delinquent scheduled payments of principal and interest
through liquidation (unless deemed non-recoverable) and prepayment
interest shortfalls (to the extent of the monthly servicing fee payable
thereto), servicing and mortgage loan representations and warranties
which
in form and substance conform to the representations and warranties
in
this Agreement and to secondary market standards for securities backed
by
mortgage loans similar to the Mortgage Loans and such provisions
with
regard to servicing responsibilities, investor reporting, segregation
and
deposit of principal and interest payments, custody of the Mortgage
Loans,
and other covenants as are reasonably required by the Purchaser and
one or
more nationally recognized rating agencies for mortgage pass-through
transactions which are “mortgage related securities” for the purposes of
the Secondary Mortgage Market Enhancement Act of 1984, unless otherwise
mutually agreed. At the option of the Purchaser, the facilities
of the Depository Trust Company (“DTC”) may be used in connection with any
class of security issued pursuant to any pooling agreement, subject
only
to the consent of the DTC. If the Purchaser deems it advisable
at any time to pool the Mortgage Loans with other mortgage loans
for the
purpose of resale or securitization, the Servicer agrees to execute
one or
more subservicing agreements between itself and a master servicer
designated by the Purchaser at its sole discretion, and/or one or
more
servicing agreements among the Servicer, the Purchaser and a trustee
designated by the Purchaser at its sole discretion, such agreements
in
each case incorporating terms and provisions substantially identical
to
those described in the immediately preceding
paragraph;
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(9)
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With
respect to each Whole Loan Transfer and Securitization Transaction,
the
Seller shall establish and maintain one or more Custodial Accounts
and
Escrow Accounts with respect to the Mortgage Loans sold pursuant
to such
Whole Loan Transfer or Securitization Transaction, which accounts
shall be
established and maintained in addition to, and separate and apart
from,
any other Custodial Account or Custodial Accounts and Escrow Account
or
Escrow Accounts established and maintained pursuant to this Agreement.
The
sale or transfer of the Mortgage Loans pursuant to a Whole Loan Transfer
or Securitization Transaction shall be deemed to create a separate
and
distinct servicing agreement by the Seller with respect to such Mortgage
Loan or Loans. In connection therewith, the obligation of the Seller
in
respect of compensating interest payments for Prepayment Interest
Shortfalls with respect to the Mortgage Loans sold pursuant to a
Whole
Loan Transfer or Securitization Transaction, or sold pursuant to
one Whole
Loan Transfer or Securitization Transaction and separated by loan
group
(each, a “Loan Group”), shall accrue with respect to the related Mortgage
Loans or Loan Group, and shall not be made on an aggregate basis
with all
of the Mortgage Loans purchased pursuant to or in connection with
this
Agreement or with the Mortgage Loans of a different Loan Group. In
addition, any reimbursement of the Seller in respect of Monthly Advances,
Servicing Advances and unreimbursed Servicing Fees shall be reimbursed
first on a loan by loan basis and, if reimbursed out of general
collections on the related Mortgage Loans, shall be reimbursed from
collections on the Mortgage Loans sold pursuant to the related Whole
Loan
Transfer or Securitization Transaction or, with respect to Mortgage
Loans
sold pursuant to one Whole Loan Transfer or Securitization Transaction
and
separated by Loan Group, out of collections of the Mortgage Loans
in the
related Loan Group. The sale or transfer of the Mortgage Loans
pursuant to a Whole Loan Transfer or Securitization Transaction shall
be
deemed to create a separate and distinct servicing agreement by the
Seller
with respect to such Mortgage Loan or
Loans.
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(10)
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in
connection with any securitization of any Servicing Retained Mortgage
Loans, to transfer the servicing rights to the Purchaser or its designee
as described in Section 15 upon the direction of the
Purchaser.
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All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Securitization Transaction shall be subject to this Agreement and shall continue
to be serviced for the remainder of the Preliminary Servicing Period in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
SECTION
13. The
Seller.
Subsection
13.01. Additional
Indemnification by the Seller.
In
addition to the indemnification provided in Subsection 7.03, the Seller shall
indemnify the Purchaser and hold the Purchaser harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
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 perform its obligations under this Agreement including but not limited to
its
obligation to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or any Reconstitution Agreement entered into
pursuant to Section 12. The indemnification obligation of the Seller
set forth herein shall survive the termination of this Agreement.
Subsection
13.02. Merger
or Consolidation of the Seller.
The
Seller shall keep in full force and effect its existence, rights and franchises
as a corporation under the laws of the state of its incorporation except as
permitted herein, and shall obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement
or any of the Mortgage Loans, and to enable the Seller 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, 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 whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, shall be
a
FNMA or FHLMC approved seller/servicer and shall satisfy any requirements of
Section 16 with respect to the qualifications of a successor to the
Seller.
Subsection
13.03. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer shall
be under any liability to the Purchaser for any action taken or for refraining
from the taking of any action in good faith in connection with the servicing
of
the Mortgage Loans pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or any
such person against any breach of warranties or representations made herein,
or
failure to perform its obligations in strict compliance with any standard of
care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Servicer and any officer, employee or agent of the Servicer may rely in
good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising hereunder. The Servicer shall not
be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its obligation to sell or duty to service the Mortgage Loans
in accordance with this Agreement and which in its opinion may result in its
incurring any expenses or liability; provided, however, that the Servicer 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 legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser shall be liable, the Servicer shall be entitled to
reimbursement therefor from the Purchaser upon written demand except when such
expenses, costs and liabilities are subject to the Servicer’s indemnification
under Subsections 7.03 or 13.01.
Subsection
13.04. Seller
Not to Resign.
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual consent of the Servicer and the
Purchaser or upon the determination that the Servicer’s servicing duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer in which event the Servicer may resign. Any
such
determination permitting the resignation of the Servicer 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 and which
shall be provided at the cost of the Servicer. No such resignation shall become
effective until a successor shall have assumed the Servicer’s responsibilities
and obligations hereunder in the manner provided in Section 16.
Subsection
13.05. No
Transfer of Servicing.
The
Servicer acknowledges that the Purchaser has acted in reliance upon the
Servicer’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 Servicer 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, which
consent will not be unreasonably withheld.
SECTION
14. DEFAULT.
Subsection
14.01. Events
of Default.
In
case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing, that is to say:
(i) any
failure by the Servicer 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 Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the
Purchaser; or
(ii) failure
on the part of the Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Servicer set forth
in this Agreement which continues unremedied for a period of thirty days (except
that such number of days shall be fifteen 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 Servicer by 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 Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) failure
by the Servicer to be in compliance with the “doing business” or licensing laws
of any jurisdiction where a Mortgaged Property is located but only to the extent
such qualification is necessary to ensure the enforceability of each Mortgage
Loan and to perform the Servicer’s obligation under this Agreement;
or
(vii) the
Servicer has its right to service temporarily or permanently suspended by FNMA
or FHLMC or otherwise ceases to meet the qualifications of either a FNMA or
FHLMC seller/servicer; or
(viii) the
Servicer attempts to assign its right to servicing compensation hereunder or
the
Servicer 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
(ix) to
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Servicer’s membership in
MERS is terminated for any reason; or
(x) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 11.24, 11.25 or 11.26 of the Servicing Addendum,
which failure continues unremedied for a period of fifteen (15) days after
the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by any party to this Agreement or by
any
master servicer responsible for master servicing the Mortgage Loans pursuant
to
a securitization of such Mortgage Loans; or
(xi) a
Rating
Agency lowers the Servicer’s servicer rating at any time below a rating of
“Average” following the date of this Agreement;
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 Servicer may, in addition
to whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Servicer under this Agreement. On or after the receipt by
the
Servicer of such written notice, all authority and power of the Servicer to
service the Mortgage Loans under this Agreement shall on the date set forth
in
such notice pass to and be vested in the successor appointed pursuant to Section
16.
All
Servicing Transfer Costs shall be paid by the Servicer upon presentation of
reasonable documentation of such costs.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 13.04) of the Servicer hereunder, either
(i) the successor Servicer shall represent and warrant that it is a member
of
MERS in good standing and shall agree to comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, or (ii) the Servicer shall
cooperate with the successor company either (x) in causing MERS to execute
and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Purchaser and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS
System to the successor company or (y) in causing MERS to designate on the
MERS
System the successor company as the servicer of such Mortgage Loan.
Subsection
14.02. Waiver
of Defaults.
The
Purchaser may waive any default by the Servicer 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.
SECTION
15. Termination. The
respective obligations and responsibilities of the Servicer shall terminate
(i)
with respect to the Servicing Released Mortgage Loans, at the expiration of
the
Interim Servicing Period unless terminated on an earlier date at the opinion
of
the Purchaser pursuant to this Section 15 or pursuant to Section 14 or (ii)
with
respect to the Servicing Retained Mortgage Loans, upon the distribution to
the
Purchaser of the final payment or liquidation with respect to the last Mortgage
Loan (or advances of same by the Seller) or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder unless
terminated with respect to all or a portion of the Mortgage Loans on an earlier
date at the option of the Purchaser pursuant to this Section 15 or pursuant
to
Section 14. In connection with the Servicing Retained Mortgage Loans,
the Purchaser may terminate the Servicer pursuant to this Section 15 without
cause if the Purchaser pays to the Servicer a termination fee based on the
fair
market value of the related servicing rights as mutually agreed to between
the
Servicer and the Purchaser. Upon written request from the Purchaser in
connection with any such termination, the Servicer shall prepare, execute and
deliver, any and all documents and other instruments, place in the Purchaser’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 Servicer’s sole expense. The
Servicer agrees to cooperate with the Purchaser and such successor in effecting
the termination of the Servicer’s responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Servicer
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
SECTION
16. Successor
to the Servicer. Prior to termination of Servicer’s
responsibilities and duties under this Agreement pursuant to Section 12, 14
or
15, the Purchaser shall (i) succeed to and assume all of the Servicer’s
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer 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 it and such successor shall agree. In the event that the Servicer’s
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned Sections, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of the Purchaser or such successor. The
termination of the Servicer pursuant to the aforementioned Sections shall not
become effective until a successor shall be appointed pursuant to this Section
16 and shall in no event relieve the Servicer of the representations and
warranties made pursuant to Subsections 7.01 and 7.02 and the remedies available
to the Purchaser under Subsection 7.03, 7.04 or 7.05, it being understood and
agreed that the provisions of such Subsections 7.01, 7.02, 7.03, 7.04 and 7.05
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer or the Servicer, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer 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 Servicer, with
like
effect as if originally named as a party to this Agreement provided, however,
that such successor shall not assume, and Servicer shall indemnify such
successor for, any and all liabilities arising out of the Servicer’s acts as
servicer. Any termination of the Servicer pursuant to Section 12, 14 or 15
shall
not affect any claims that the Purchaser may have against the Servicer arising
prior to any such termination or resignation or remedies with respect to such
claims.
The
Servicer shall timely 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 Servicer shall account for all funds.
The Servicer 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 Servicer. The successor shall make arrangements as it
may
deem appropriate to reimburse the Servicer for amounts the Servicer actually
expended pursuant to this Agreement which the successor is entitled to retain
hereunder and which would otherwise have been recovered by the Servicer pursuant
to this Agreement but for the appointment of the successor
servicer.
SECTION
17. Financial
Statements. The Seller understands that in connection with the
Purchaser’s marketing of the Mortgage Loans, the Purchaser shall make available
to prospective purchasers the Seller’s financial statements for the most
recently completed three fiscal years respecting which such statements are
available. The Seller also shall make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or
the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
SECTION
18. Mandatory
Delivery: Grant of Security Interest. The sale and delivery of
each Mortgage Loan on or before the related Closing Date is mandatory from
and
after the date of the execution of the related Confirmation, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller’s failure to deliver each of
the related Mortgage Loans or one or more Mortgage Loans otherwise acceptable
to
the Initial Purchaser on or before the related Closing Date. The Seller hereby
grants to the Initial Purchaser a lien on and a continuing security interest
in
each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser’s (i) right to reject
any Mortgage Loan under the terms of this Agreement and the related
Confirmation, and (ii) obligation to pay the related Purchase Price for the
Mortgage Loans. The Purchaser shall relinquish its security interest with
respect to any Mortgage Loan which is not purchased by the related Closing
Date
or is repurchased pursuant to this agreement, in the later case following
receipt of the Repurchase Price. All rights and remedies of the Purchaser under
this Agreement are distinct from, and cumulative with, any other rights or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or
successively.
SECTION
19. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(i) if
to the Purchaser:
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxxxxx
(ii) if
to GreenPoint:
GreenPoint
Mortgage Funding, Inc.
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
XX
00000
Attention:
Xxxxx Xxxxx, Secondary Marketing
Telephone:
000-000-0000
Facsimile: 000-000-0000
With
a copy to:
GreenPoint
Mortgage Funding, Inc
000 Xxxx Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention
General Counsel
(iii) if
to North Fork:
North Fork Bank
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx
Xxxx 00000
Attention: [___________]
Telephone: [__________]
Facsimile:
[_________]
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
20. Severability
Clause. Any part, provision, representation or warranty of this
Agreement which is prohibited or which is held to be void or unenforceable
shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
SECTION
21. Counterparts. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
22. Governing
Law. The Agreement shall be construed in accordance with the laws
of the State of New York without regard to any conflicts of law provisions
and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York, except to
the
extent preempted by Federal law.
SECTION
23. Intention
of the Parties. It is the intention of the parties that the
Initial Purchaser is purchasing, and the Seller is selling, the Mortgage Loans
and not a debt instrument of the Seller or another security. Accordingly, the
parties hereto each intend to treat the transaction for Federal income tax
purposes as a sale by the Seller, and a purchase by the Purchaser, of the
Mortgage Loans. The Initial Purchaser shall have the right to review the
Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Initial Purchaser in the course of such
review. In the event, for any reason, any transaction contemplated
herein is construed by any court or regulatory authority as a borrowing rather
than as a sale, the Seller and the Purchaser intend that the Purchaser or its
assignee, as the case may be, shall have a perfected first priority security
interest in the Mortgage Loans, the Custodial Account and the proceeds of any
and all of the foregoing (collectively, the “Collateral”), free and clear of
adverse claims. In such case, the Seller shall be deemed to have hereby granted
to the Purchaser or its assignee, as the case may be, a first priority security
interest in and lien upon the Collateral, free and clear of adverse claims.
In
such event, the related Confirmation and this Agreement shall constitute a
security agreement, the Purchaser’s custodian shall be deemed to be an
independent custodian for purposes of perfection of the security interest
granted to the Purchaser or its assignee, as the case may be, and the Purchaser
or its assignee, as the case may be, shall have all of the rights of a secured
party under applicable law.
SECTION
24. Successors
and Assigns. This Agreement shall bind and inure to the benefit
of and be enforceable by the Seller and the Purchaser and the respective
successors and assigns of the Seller and the Purchaser. The Purchaser may assign
this Agreement to any Person to whom any Mortgage Loan is transferred whether
pursuant to a sale or financing and to any Person to whom the servicing or
master servicing of any Mortgage Loan is sold or transferred. Upon
any such assignment, the Person to whom such assignment is made shall succeed
to
all rights and obligations of the Purchaser under this Agreement to the extent
of the related Mortgage Loan or Mortgage Loans and this Agreement, to the extent
of the related Mortgage Loan or Loans, shall be deemed to be a separate and
distinct Agreement between the Seller and such Purchaser, and a separate and
distinct Agreement between the Seller and each other Purchaser to the extent
of
the other related Mortgage Loan or Loans. In the event that this
Agreement is assigned to any Person to whom the servicing or master servicing
of
any Mortgage Loan is sold or transferred, the rights and benefits under this
agreement which inure to the Purchaser shall inure to the benefit of both the
Person to whom such Mortgage Loan is transferred and the Person to whom the
servicing or master servicing of the Mortgage Loan has been transferred;
provided that, the right to require a Mortgage Loan to be repurchased by the
Seller pursuant to Subsection 7.03 or 7.04 shall be retained solely by the
Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION
25. Waivers. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
SECTION
26. Exhibits. The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
27. General
Interpretive Principles. For purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
28. Nonsolicitation. The
Seller covenants and agrees that it shall not take any action to solicit the
refinancing of any Mortgage Loan following the date hereof or provide
information to any other entity to solicit the refinancing of any Mortgage
Loan.
Notwithstanding the foregoing, it is understood and agreed that the Seller,
the
Servicer or any of their respective affiliates:
(a) may
provide pay-off information and otherwise cooperate with individual mortgagors
who contact it about prepaying their mortgages by advising them of refinancing
terms and streamlined origination arrangements that are available;
and
(b) may
offer
to refinance a Mortgage Loan made within 30 days following receipt by it of
a pay-off request from the related Mortgagor.
Promotions
undertaken by the Seller or by any affiliate of the Seller which are directed
to
the general public at large (including, without limitation, mass mailing based
on commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this
Section.
SECTION
29. Reproduction
of Documents. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications which
may
hereafter be executed, (b) documents received by any party at the closing,
and
(c) financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the
original itself in any judicial or administrative proceeding, whether or not
the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile
or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
30. COMPLIANCE
WITH REGULATION AB
Subsection
30.01. Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Article
30 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 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 available to the Seller
without unreasonable cost and expense within a reasonable and customary
timeframe under these provisions on the basis of evolving interpretations of
Regulation AB. In connection with any Securitization Transaction, the Seller
shall cooperate in a reasonable manner with the Purchaser and any master
servicer to deliver to the Purchaser (including any of its assignees or
designees), any master servicer and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in the
good
faith determination of the Purchaser, the master servicer or any Depositor
to
permit the Purchaser, such master servicer or such Depositor to comply with
the
provisions of Regulation AB, together with such disclosures relating to the
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 to be necessary in order to effect such compliance; provided, however,
that the Seller shall not be required to provide Static Pool Information with
respect to periods prior to January 1, 2006 if the Seller delivers an Officer’s
Certificate to the Purchaser or any Depositor stating that the Seller cannot
obtain such Static Pool Information without unreasonable effort or
expense.
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.
Subsection
30.02. Additional
Representations and Warranties of the Seller.
(i) The
Seller shall be deemed to represent to the Purchaser, to any master servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any master servicer or any Depositor under Subsection 30.03 that,
except as disclosed in writing to the Purchaser, such master servicer or such
Depositor prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Servicer has not been terminated as servicer in
a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving the Servicer has been
disclosed or reported by the Servicer; (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 applicable Reconstitution Agreement related thereto
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 applicable Reconstitution
Agreement related thereto; (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 that may be reasonably believed to
be
material to securityholders; 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.
(ii) 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 Subsection 30.03, the Seller shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as
of
the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
Subsection
30.03. Information
to Be Provided by the Seller.
In
connection with any Securitization
Transaction the Seller shall (i) within five Business Days following request
by
the Purchaser, any master servicer or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause each Third-Party Originator and
each Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (b), (c) 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 writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(i) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) to
the extent determined by the Purchaser or any Depositor to be material, 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, the
originators’ credit-granting or underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and such other information as the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB. With respect to the information regarding
the size and composition of the originator’s origination portfolio, the Seller
shall deliver to the Purchaser and to any person designated by the Purchaser,
at
the Purchaser’s expense, an agreed upon procedures report of a reputable,
certified public accountant pertaining to such information if reasonably
requested by the Purchaser;
(C) a
brief description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Seller, each Third-Party Originator and
each Subservicer that may be reasonably believed to be material to
securityholders; 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.
(ii) If
so
requested by the Purchaser or any Depositor with respect to any Servicing
Retained Mortgage Loans, 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 Servicing Retained Mortgage Loans,
as
reasonably identified by the Purchaser as provided below) originated by (i)
the
Seller, if the Seller is an originator of the Servicing Retained Mortgage Loans
(including as an acquirer of Servicing Retained 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.
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 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 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.
With
respect to any Servicing Released Mortgage Loans that were sold to the Purchaser
pursuant to this Agreement, the Purchaser shall, to the extent consistent with
then current industry practice and as permitted by applicable law, seek to
cause
the servicer of the Servicing Released Mortgage Loans (or another party) to
be
obligated to provide Static Pool Information, in the form customarily provided
by such servicer or other party (which need not be customized for Seller) with
respect to the Servicing Released Mortgage Loans.
(iii) If
so
requested by the Purchaser or any Depositor, the Servicer shall provide such
information regarding the Servicer of the Mortgage Loans, and each Subservicer
(each of the Servicer and each Subservicer, for purposes of this paragraph,
a
“Servicer”), as is reasonably requested for the purpose of compliance with Items
1108, 1111, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any applicable Reconstitution Agreements related thereto; 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 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;
With
respect to the information regarding the size, composition and growth of the
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans, the Servicer shall deliver to the Purchaser and to any person
designated by the Purchaser, at the Purchaser’s expense, an agreed upon
procedures report of a reputable, certified public accountant pertaining to
such
information if reasonably requested by the Purchaser;
(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 applicable Reconstitution Agreements related thereto 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 applicable
Reconstitution Agreement related thereto;
(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;
(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; and
(I) historical
delinquency information with respect to the Mortgage Loans since origination
of
the Mortgage Loans.
(iv) For
the
purpose of satisfying the reporting obligation 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) provide prompt notice
to the Purchaser, any master servicer and any Depositor in writing of (A) any
litigation or governmental proceedings involving the Seller, any Subservicer
or
any Third-Party Originator that may be reasonably believed to be material to
securityholders, (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 Subsection (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
applicable Reconstitution Agreement related thereto, (D) any merger,
consolidation or sale of substantially all of the assets of the
Seller, and (E) the Seller’s entry into an agreement with a Subservicer or
Subcontractor to perform or assist in the performance of any of the Seller’s
obligations under this Agreement or any applicable Reconstitution Agreement
related thereto and (ii) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or relationships.
(v) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any applicable Reconstitution Agreement
related thereto 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
the Servicer or any Subservicer, the 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) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(vi) In
addition to such information, the Servicer is obligated to provide pursuant
to
other provisions of this Agreement, not later than ten days prior to the
deadline for the filing of any distribution report on Form 10-D in respect
of
any Securitization Transaction that includes any of the Mortgage Loans serviced
by the Servicer or any Subservicer, the Servicer or such Subservicer, as
applicable, shall 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 pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(vii) The
Servicer shall provide to the Purchaser, any Master Servicer and any Depositor,
such additional information as such party may reasonably request, including
evidence of the authorization of the person signing any certification or
statement, financial information and reports, and such other information related
to the Servicer or any Subservicer or the Servicer or such Subservicer’s
performance hereunder.
Subsection
30.04. Servicer
Compliance Statement.
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 related thereto 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
related thereto 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.
Subsection
30.05. Report
on Assessment of Compliance and Attestation.
(i) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
deliver
to the Purchaser, any master servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such master servicer and
such Depositor) regarding the 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 applicable Servicing Criteria specified on Exhibit 12
hereto;
(ii) deliver
to the Purchaser, any master servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such master
servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the 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
Subsection 30.06(b) 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 (a) and (b) of this Subsection;
and
(iv) if
requested by the Purchaser, any master servicer or any Depositor not later
than
February 1 of the calendar year in which such certification is to be delivered,
deliver to the Purchaser, any Depositor and any other Person that will be
responsible for signing the certification (a “Sarbanes Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section
302
of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with
respect to a Securitization Transaction a certification, signed by the
appropriate officer of the Servicer, in the form attached hereto as Exhibit
11.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(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.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
30.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 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
Subsection 30.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Subsection
30.06.
Subsection
30.06. Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer under this Agreement or any
applicable Reconstitution Agreement related thereto unless the Servicer complies
with the provisions of paragraph (i) of this Subsection. 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 applicable Reconstitution Agreement related thereto
unless the Servicer complies with the provisions of paragraph (ii) of this
Subsection.
(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 Subsection and with Subsections 30.02, 30.03(c), (e),
(f)
and (g), 30.04, 30.05 and 30.07 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 Subsection 30.03(d) of this Agreement. The
Servicer shall be responsible for obtaining from each Subservicer and delivering
to the Purchaser and any Depositor any Servicer compliance statement required
to
be delivered by such Subservicer under Subsection 30.04, any assessment of
compliance and attestation required to be delivered by such Subservicer under
Subsection 30.05 and any certification required to be delivered to the Person
that will be responsible for signing the Sarbanes Certification under Subsection
30.05 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 an
administrator) a written description (in form and substance satisfactory to
the
Purchaser, such master servicer and such Depositor) of the role and function
of
each Subcontractor utilized by the Servicer or any Subservicer, specifying
(i)
the identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the 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 Subsections 30.05 and 30.07 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 required to be delivered by such Subcontractor under Subsection
30.05, in each case as and when required to be delivered.
Subsection
30.07. Indemnification;
Remedies.
(i) The
Seller shall indemnify the Purchaser, the Depositor, each sponsor and issuing
entity; each Person (including, but not limited to, any master servicer, if
applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d)
or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties or the Depositor
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing and of the Depositor
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided under this Article 30 by or on behalf of the Seller, or
provided under this Article 30 by or on behalf of any Subservicer, Subcontractor
or Third-Party Originator (collectively, the “Seller/Servicer Information”), or
(B) the omission or alleged omission to state in the Seller/Servicer Information
a material fact required to be stated in the Seller/Servicer 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/Servicer Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Seller/Servicer Information or any portion thereof is presented
together with or separately from such other information; or
(ii) any
breach by the Seller of its obligations under this Article 30, any failure
by
the Seller, any Subservicer, any Subcontractor or any Third-Party Originator
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article 30, including any failure
by
the Seller to identify pursuant to Subsection 30.06(b) 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 Subsection
30.02(a) or in a writing furnished pursuant to Subsection 30.02(b) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 30.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Article 30.
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 as a result of any
claims, losses, damages or liabilities incurred 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
Subsection, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer,
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, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article 30, or any
breach by the Seller of a representation or warranty set forth in Subsection
30.02(a) or in a writing furnished pursuant to Subsection 30.02(b) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 30.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement related thereto, and shall entitle the Purchaser,
any
master servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement related thereto without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement related thereto to the contrary) of any compensation
to
the Seller; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement related thereto expressly
provides for the survival of certain rights or obligations following termination
of the Seller as servicer, such provision shall be given effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 30.04 or 30.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 30.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement related thereto, and shall entitle the Purchaser, any master servicer
or any Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement related thereto without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Seller; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement related thereto expressly
provides for the survival of certain rights or obligations following termination
of the Seller as servicer, such provision shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Seller pursuant to this subparagraph (b)(ii) if a failure
of
the Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(iii) The
Servicer shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Servicer and the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever rights
the
Purchaser or any Depositor may have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement related thereto or otherwise,
whether in equity or at law, such as an action for damages, specific performance
or injunctive relief
SECTION
31. Further
Agreements. The Seller and the Purchaser each agree to execute
and deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate
the
purposes of this Agreement.
Without
limiting the generality of the foregoing, the Seller shall cooperate with the
Purchaser in connection with any Whole Loan Transfer or Securitization
Transaction contemplated by the Initial Purchaser pursuant to Section 12 hereof.
In such connection, the Seller shall (a) execute any agreement in accordance
with the provisions of Section 12, and (b) provide to the Initial Purchaser
or
any prospective purchaser: (i) any and all information and appropriate
verification of information, whether through letters of its auditors and counsel
or otherwise, as the Initial Purchaser shall reasonably request; and (ii) such
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably believed necessary by the Initial Purchaser in connection with such
transactions. The requirement of the Seller pursuant to (ii) above shall
terminate on the final Reconstitution Date. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Initial
Purchaser in writing of the estimated amount of such expense. The Initial
Purchaser shall reimburse the Seller for any such expense following its receipt
of appropriate details thereof.
SECTION
32. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the matters and transactions contemplated by this Agreement and,
except to the extent otherwise set forth in writing, supersedes any
prior agreement and understandings with respect to those matters and
transactions.
SECTION
33. Third
Party Beneficiary. For purposes of this Agreement any
master servicer shall be considered a third party beneficiary to this Agreement
entitled to all the rights and benefits accruing to any master servicer herein
as if it were a direct party to this Agreement.
SECTION
34. Confidentiality.
Each
of the Purchaser and the Seller
shall employ proper procedures and standards designed to maintain the
confidential nature of the terms of this Agreement, except to the extent
(a) the disclosure of which is reasonably believed by such party to be
required in connection with regulatory requirements or other legal requirements
relating to its affairs; (b) disclosed to any one or more of such party’s
employees, officers, directors, agents, attorneys or accountants who would
have
access to the contents of this Agreement and such data and information in the
normal course of the performance of such person’s duties for such party, to the
extent such party has procedures in effect to inform such person of the
confidential nature thereof; (c) that is disclosed in a prospectus,
prospectus supplement or private placement memorandum relating to a
securitization of the Mortgage Loans by the Purchaser (or an affiliate assignee
thereof) or to any Ratings Agency or other person in connection with the resale
or proposed resale of all or a portion of the Mortgage Loans by such party
in
accordance with the terms of this Agreement; and (d) that is reasonably
believed by such party to be necessary for the enforcement of such party’s
rights under this Agreement.
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
date first above written.
|
GREENPOINT
MORTGAGE FUNDING, INC.
(Seller
and Servicer)
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | ||
| Title: | Vice President | ||
|
NORTH
FORK BANK
(Seller)
|
|||
|
|
By:
|
/s/ Xxxxx X’Xxxxxx | |
| Name: | Xxxxx X’Xxxxxx | ||
| Title: |
Executive
Vice
President
|
||
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Initial
Purchaser)
|
|||
|
|
By:
|
/s/ [Authorized Signatory] | |
| Name: | |||
| Title: |
|
||
SCHEDULE
I
DATA
FILE
(TO
BE
PROVIDED BY SELLER)
SCHEDULE
II
MORTGAGE
LOAN SCHEDULE
|
Mortgage
Loan Data
|
|
|
1
|
The
Seller’s Mortgage Loan identifying number
|
|
2
|
A
code indicating whether the Mortgage Loan was originated as a prime
loan,
alt-a loan or subprime loan
|
|
3
|
A
code indicating whether the Mortgage Loan is an adjustable rate
Mortgage
Loan or a fixed rate Mortgage Loan
|
|
4
|
The
product type of the Mortgage Loan (2/28, 15 year fixed, 30 year
fixed,
15/30, 3-1, 5-1, 7-1, 10-1, 1 month, 6 month….)
|
|
5
|
A
code indicating the seller’s origination program code for the Mortgage
Loan
|
|
6
|
A
code indicating if the loan was approved by an AUS (automated underwriting
system) (CLUS, DU, LP)
|
|
7
|
The
amortization type of the Mortgage Loan (fully amortizing, interest-only,
balloon, negative amortization, payment option arm)
|
|
8
|
The
term of the balloon Mortgage Loan, if applicable
|
|
9
|
The
term of the interest-only period of the Mortgage Loan, if
applicable
|
|
10
|
The
Neg Am Cap of the Mortgage Loan, if applicable
|
|
11
|
The
Payment Cap of the Mortgage Loan, if applicable
|
|
12
|
The
Recast number of Months of the Mortgage loan, if
applicable
|
|
13
|
The
original principal balance of the Mortgage Loan
|
|
14
|
The
current principal balance of the Mortgage Loan
|
|
15
|
The
mortgage interest rate at origination of the Mortgage
Loan
|
|
16
|
The
monthly payment at origination of the Mortgage Loan
|
|
17
|
The
original term to maturity of the Mortgage Loan
|
|
18
|
A
code indicating the lien status of the Mortgage Loan (1st,
2nd)
|
|
19
|
A
code indicating whether the Mortgaged Property is subject to a
separate
second lien
|
|
20
|
The
amount of the related second lien or First lien, if
applicable
|
|
21
|
A
code indicating whether the second lien on the Mortgage Loan is
a
simultaneous second, if applicable
|
|
22
|
The
retained servicing fee or interim servicing fee for the Mortgage
Loan
|
|
23
|
The
retained step-up servicing fee for the Mortgage Loan, if
applicable
|
|
24
|
A
code indication if the Mortgage Loan is secured by has pledged
assets in
addition to the mortgaged property
|
|
25
|
The
value of the pledged asset
|
|
26
|
The
effective loan-to-value ratio of the pledged asset Mortgage Loan,
if
applicable
|
|
27
|
A
code indicating the income, asset and employment documentation
the
Mortgage Loan was originated under
|
|
28
|
A
code indicating if the Mortgage Loan is subject to a mortgagor
paid or
lender paid mortgage insurance policy
|
|
29
|
The
mortgage insurance policy provider, if applicable
|
|
30
|
The
mortgage insurance coverage percentage, if applicable
|
|
31
|
The
retained lender paid mortgage insurance fee for the Mortgage Loan,
if
applicable
|
|
32
|
A
code indicating whether the Mortgage Loan is subject to a prepayment
penalty
|
|
33
|
The
prepayment penalty term, if applicable
|
|
34
|
A
code indication if the Mortgage Loan’s prepayment penalty is soft or hard,
if applicable
|
|
35
|
The
Mortgage Loan’s payment history since its origination
|
|
36
|
An
indication of whether Borrower/Property is currently under Bankruptcy
protection
|
|
37
|
The
origination date of the Mortgage Loan
|
|
38
|
The
first payment date of the Mortgage Loan
|
|
39
|
The
stated maturity date of the Mortgage Loan
|
|
40
|
The
due date of the Mortgage loan if the loan is an odd due date
loan
|
|
41
|
A
code indicating whether the Mortgage Loan is a temporary buy-down
Mortgage
Loan
|
|
42
|
The
buy-down term of the Mortgage Loan, if applicable
|
|
43
|
A
code indicating if the Mortgage Loan is assumable
|
|
44
|
A
code indication if the Mortgage Loan is a Relocation Mortgage
Loan
|
|
45
|
The
certificate # for loan PMI
|
|
46
|
A
string describing prepay penalty terms. If applicable
|
|
47
|
HOEPA
indicator
|
|
48
|
Origination
Channel (retail/wholesale/broker/correspondent)
|
|
49
|
The
amount of any points and fees payable by the Mortgagor in connection
with
the origination of such Mortgage Loan
|
|
50
|
A
code indicating whether the Mortgage Loan is a MERS Mortgage
Loan
|
|
51
|
The
Mortgage Loans MIN number, if applicable
|
|
52
|
Annual
Percentage Rate (APR)
|
|
00
|
XX
(XXXX Xxxxxxx Xxxxxxxxxxx) Case # or LP (FHLMC Loan Prospector)
Key
#
|
|
54
|
The
Cut off Date of the Mortgage Loan Package
|
|
55
|
The
schedule balance of the Mortgage Loan as of the Cut-off Date, if
applicable
|
|
56
|
The
current balance of the Mortgage Loan as of the Cut off
Date
|
|
57
|
The
interest paid-to-date of the Mortgage Loan as of the Cut off
Date
|
|
58
|
A
code indicating if the Mortgage Loan is a Negative Amortization
Mortgage
Loan and if so, the Negative Amortization Cap and the Payment Adjustment
Date;
|
|
Borrower
Data
|
|
|
1
|
The
mortgagor’s and any co-mortgagors' debt to income
ratios
|
|
2
|
The
mortgagor's and any co-mortgagors' FICO scores
|
|
3
|
The
mortgagor's and any co-mortgagors' credit grades
|
|
4
|
The
mortgagor's occupancy status (primary residence, second home, investor
property)
|
|
5
|
The
mortgagor's borrowing purpose (purchase, rate & term refinance,
cash-out refinance)
|
|
6
|
The
date each of the credit scores was obtained
|
|
7
|
The
mortgagor's and each co-mortgagors' self-employed
status
|
|
8
|
The
mortgagor’s and any co-mortgagors' first and last name
|
|
9
|
The
mortgagor’s and any co-mortgagors' social security card
number
|
|
10
|
The
mortgagor’s and any co-mortgagors' income at
origination
|
|
11
|
The
mortgagor's and any co-borrowers' first time home buyer
status
|
|
12
|
For
cash-out refinances, the cash purpose
|
|
13
|
The
mortgagor's and any co-mortgagors'' citizenship
|
|
14
|
The
mortgagor’s and any co-mortgagors' ethnicity
|
|
15
|
The
mortgagor’s and any co-mortgagors' gender
|
|
16
|
The
mortgagor’s and any co-mortgagors' race
|
|
17
|
The
mortgagor’s and any co-mortgagors' Age & DOB
|
|
18
|
Combine
Monthly Housing Expense
|
|
19
|
Combine
Monthly Debt Expense
|
|
Mortgage
Property Data
|
|
|
1
|
The
Mortgage Loan's Property Type
|
|
2
|
The
number of units in the related mortgaged property
|
|
3
|
A
code indicating if the mortgage is secured by a leasehold estate
(Y/N)
|
|
4
|
The
sales price of the mortgaged property, if applicable
|
|
5
|
The
appraised value of the mortgaged property
|
|
6
|
The
loan to value ratio at origination of the Mortgage Loan
|
|
7
|
The
combined loan-to-value ratio at origination of the Mortgage Loan,
if
applicable
|
|
8
|
The
street address of the mortgaged property including the state, county,
city
and zip code
|
|
9
|
A
code indicating whether there is flood insurance required and existing
on
the mortgaged property
|
|
10
|
A
code indicating the form of appraisal used in the origination of
the
Mortgage Loan (i.e. form 1004, 2055, avm, bpo)
|
|
11
|
The
AVM Provider, if applicable
|
|
12
|
The
total rental income, if applicable
|
|
13
|
The
year the mortgaged property was built
|
|
14
|
The
number of bedrooms contained in the mortgaged property
|
|
15
|
Condo
Project Type (FNMA) Condo Project Name
(FHLMC)
|
|
16
|
Condo
Warrantable Flag
|
|
Adjustable
Rate Mortgage Loan Data, if applicable
|
|
|
1
|
The
index of the Mortgage Loan
|
|
2
|
The
current mortgage interest rate as of the Cut off Date of the Mortgage
Loan
|
|
3
|
The
gross margin of the Mortgage Loan
|
|
4
|
The
maximum mortgage interest rate under the terms of the Mortgage
Note or the
maximum interest rate increase over the life of the Mortgage
Loan
|
|
5
|
The
minimum mortgage interest rate under the terms of the Mortgage
Note
|
|
6
|
The
initial rate adjustment cap
|
|
7
|
The
initial rate adjustment floor
|
|
8
|
The
subsequent periodic rate adjustment cap
|
|
9
|
The
subsequent periodic rate adjustment floor
|
|
10
|
A
code indicating the frequency of adjustment of the related mortgage
interest rate
|
|
11
|
A
code indicating the frequency of adjustment of the related mortgage
payment
|
|
12
|
A
code indicating if the Mortgage Loan is convertible into a fixed
rate
mortgage loan
|
|
13
|
The
number of index look-back days of the Mortgage Loan
|
|
14
|
The
new interest rate rounding factor of the Mortgage loan
|
|
15
|
The
new interest rate rounding direction of the Mortgage
Loan
|
|
16
|
The
first interest rate adjustment date of the Mortgage
Loan
|
|
17
|
The
next mortgage interest rate following the Cut off Date if it is
immediately changing
|
|
18
|
The
current monthly payment as of the Cut off Date
|
|
19
|
The
first payment adjustment date
|
|
20
|
The
next monthly payment following the Cut off Date if it is immediately
changing
|
|
Servicing
Released Mortgage Loan Data, if applicable
|
|
|
1
|
A
code indicating if there are escrows
|
|
2
|
The
amount of the Mortgage Loan month escrows, if
applicable
|
|
3
|
The
amount contained in the Mortgage Loan escrow account, if
applicable
|
|
4
|
The
tax service contract number
|
|
5
|
The
tax service contract provider
|
|
6
|
The
transferability status of the tax service contract
|
|
7
|
The
flood insurance certificate
|
|
8
|
The
flood insurance certificate provider
|
|
9
|
Flood
Zone Code
|
|
10
|
The
transferability of the flood insurance
certificate
|
EXHIBIT
1
SELLER’S
OFFICER’S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of [SELLER], a ______________ (the “Seller”), and further
certify, on behalf of the Seller as follows:
1. Attached
hereto as Attachment I are a true and correct copy of the [Certificate of
Incorporation and by-laws][Certificate of limited partnership and limited
partnership agreement] of the Seller as are in full force and effect on the
date
hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed (a) the
Master Mortgage Loan Purchase and Servicing Agreement (the “Purchase
Agreement”), dated as of ____ 1, 200_, by and between the Seller and Citigroup
Global Markets Realty Corp. (the “Purchaser”); (b) the Confirmation, dated
_____________ 200_, between the Seller and the Purchaser (the “Confirmation”);
and (c) any other document delivered prior hereto or on the date hereof in
connection with the sale and servicing of the Mortgage Loans in accordance
with
the Purchase Agreement and the Confirmation was, at the respective times of
such
signing and delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine
signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ________________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
______________, 200_. No event has occurred since
___________________, 200_ which has affected the good standing of the Seller
under the laws of the State of ___________.
6. All
of the representations and warranties of the Seller contained in Subsections
7.01 and 7.02 of the Purchase Agreement were true and correct in all material
respects as of the date of the Purchase Agreement and are true and correct
in
all material respects as of the date hereof.
7. The
Seller has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the related Closing
Date pursuant to the Purchase Agreement and the related
Confirmation.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
| Dated: _____________________ | |||
|
[Seal]
|
|||
|
[SELLER]
(Seller)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | Vice President | ||
I,
_______________________, Secretary of the Seller, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
| Dated: _____________________ | |||
|
[Seal]
|
|||
|
[SELLER]
(Seller)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | [Assistant] Secretary | ||
EXHIBIT
2A
[FORM
OF
OPINION OF COUNSEL TO NORTH FORK]
Ladies
and Gentlemen:
I
or
attorneys working under my direction have acted as counsel to the Company in
connection with certain matters described in the Agreements. This
opinion is given to you pursuant to Section 9 of the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of March 1, 2007 (the “Servicing
Agreement”) among Citigroup Global Markets Realty Corp., GreenPoint Mortgage
Funding, Inc. and North Fork Bank (the “Company”). Capitalized terms
not otherwise defined herein have the meanings set forth in the Servicing
Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
1. Signed
copies of the Agreements;
2. The
Company’s Charter
3. The
Company’s By-Laws; and
4. Resolutions
adopted by the Board of Directors of the Company.
For
the
purpose of rendering this opinion, I or attorneys working under my direction
have made such documentary, factual and legal examinations, as deemed
necessary under the circumstances. As to factual matters, I or
attorneys working under my direction have relied upon statements, certificates
and other assurances of public officials and of officers and other
representatives of the Company, and upon such other certificates
as deemed appropriate, which factual matters have not been
independently established or verified by me. I or attorneys working
under my direction have also assumed, among other things, the genuineness of
all
signatures, the legal capacity of all natural persons, the authenticity of
all
documents submitted as originals, and the conformity to original
documents of all documents submitted as copies and the authenticity
of the originals of such copied documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
(a) The
Company has been duly incorporated and is validly existing and in good standing
under the laws of the State of New York with corporate power and authority
to
own its properties and conduct its business as presently conducted by
it. The Company has the corporate power and authority to execute,
deliver, and perform its obligations under the Agreements.
(b) The
Agreements have been duly and validly authorized, executed and delivered by
the
Company.
(c) The
Agreements constitute valid, legal and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms.
(d) No
consent, approval, authorization or order of any court or United States federal
or New York government authority on the part of the Company is
required for the execution, delivery and performance by the Company of the
Agreements, except for those consents, approvals, authorizations or orders
which
previously have been obtained.
(e) The
execution, delivery and performance of the Agreements will not, as of the date
hereof, result in a violation of the Certificate of Incorporation or By-Laws
of
the Company, or, to the best of my knowledge, result in a violation of, or
constitute a default under, (i) the terms of any indenture or other
agreement or instrument to which the Company is a party or by which it is bound,
(ii) any New York or United States federal statute or regulation
applicable to the Company, or (iii) any order of any State of New
York or United States federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company, except in
any
such case where the violation would not have a material adverse effect on the
company or its ability to perform its obligations under the
Agreement.
(f) There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Company which, in my judgment, would draw
into
question the validity of the Agreements or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Agreements.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
1. I
have
assumed that all parties to the Agreements other than the Company have all
requisite power and authority to execute, deliver and perform their respective
obligations under the Agreements, and that the Agreements have been duly
authorized by all necessary corporate action on the part of such parties, has
been executed and delivered by such parties and constitutes the legal, valid
and
binding obligation of such parties.
2. My
opinion expressed in paragraph c above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of laws relating to (1) bankruptcy, reorganization, insolvency, moratorium
or other similar laws now or hereafter in effect relating to creditors’ rights
generally, including, without limitation, the effect of statutory or other
laws
regarding fraudulent conveyances or preferential transfers, and (2) general
principles of equity upon the specific enforceability of any of the remedies,
covenants or other provisions of the Agreements and upon the availability of
injunctive relief or other equitable remedies and the application of principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) as such principles relate to, limit or affect
the enforcement of creditors’ rights generally and the discretion of the court
before which any proceeding for such enforcement may be brought; and (ii) I
express no opinion herein with respect to the validity, legality, binding effect
or enforceability of provisions for indemnification in the Agreements to the
extent such provisions may be held to be unenforceable as contrary to public
policy.
3. My
opinion expressed in paragraph e above relating to violations of United
States federal and New York statutes, regulations or orders applicable to the
Company is limited to such statutes, regulations or orders that in my experience
are typically applicable to a transaction of the nature contemplated by the
Agreements.
4. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Company and any other party, which would
expand, modify or otherwise affect the terms of the Agreements or the respective
rights or obligations of the parties there under.
I
am
admitted to practice in the State of New York, and I render no opinion herein
as
to matters involving or governed by the laws of any jurisdiction other than
the
State of New York and the federal laws of the United States of
America. I also express no opinion as to whether the laws of any
particular jurisdiction apply, and no opinion to the extent that the laws of
any
jurisdiction other than those identified above are applicable to the
Agreements.
This
opinion letter has been prepared and should be understood in accordance with
the
Legal Opinion Principles, 53 Bus. Law. 831 (1998), and
Guidelines for the Preparation of Closing Opinions, 57 Bus.
Law. 875 (2002), of the Committee on Legal Opinions, ABA Section
of Business Law.
Very
truly yours,
Xxxxxxx
Xxxxx
Senior
Vice President
Chief
Counsel
North
Fork Bank
EXHIBIT
2B
[FORM
OF
OPINION OF COUNSEL TO GREENPOINT]
Ladies
and Gentlemen:
I
or
attorneys working under my direction have acted as counsel to the Company in
connection with certain matters described in the Agreements. This
opinion is given to you pursuant to Section 9 of the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of March 1, 2007 (the “Servicing
Agreement”) among Citigroup Global Markets Realty Corp., North Fork Bank and
GreenPoint Mortgage Funding, Inc. (the “Company”). Capitalized terms
not otherwise defined herein have the meanings set forth in the Servicing
Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
1. Signed
copies of the Agreements;
2. The
Company’s Certificate of Incorporation
3. The
Company’s By-Laws; and
4. Resolutions
adopted by the Board of Directors of the Company.
For
the
purpose of rendering this opinion, I or attorneys working under my direction
have made such documentary, factual and legal examinations, as deemed
necessary under the circumstances. As to factual matters, I or
attorneys working under my direction have relied upon statements, certificates
and other assurances of public officials and of officers and other
representatives of the Company, and upon such other certificates
as deemed appropriate, which factual matters have not been
independently established or verified by me. I or attorneys working
under my direction have also assumed, among other things, the genuineness of
all
signatures, the legal capacity of all natural persons, the authenticity of
all
documents submitted as originals, and the conformity to original
documents of all documents submitted as copies and the authenticity
of the originals of such copied documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
(a) The
Company has been duly incorporated and is validly existing and in good standing
under the laws of the State of New York with corporate power and authority
to
own its properties and conduct its business as presently conducted by
it. The Company has the corporate power and authority to execute,
deliver, and perform its obligations under the Agreements.
(b) The
Agreements have been duly and validly authorized, executed and delivered by
the
Company.
(c) The
Agreements constitute valid, legal and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms.
(d) No
consent, approval, authorization or order of any court or United States federal
or New York government authority on the part of the Company is
required for the execution, delivery and performance by the Company of the
Agreements, except for those consents, approvals, authorizations or orders
which
previously have been obtained.
(e) The
execution, delivery and performance of the Agreements will not, as of the date
hereof, result in a violation of the Certificate of Incorporation or By-Laws
of
the Company, or, to the best of my knowledge, result in a violation of, or
constitute a default under, (i) the terms of any indenture or other
agreement or instrument to which the Company is a party or by which it is bound,
(ii) any New York or United States federal statute or regulation
applicable to the Company, or (iii) any order of any State of New
York or United States federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company, except in
any
such case where the violation would not have a material adverse effect on the
company or its ability to perform its obligations under the
Agreement.
(f) There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Company which, in my judgment, would draw
into
question the validity of the Agreements or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Agreements.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
1. I
have
assumed that all parties to the Agreements other than the Company have all
requisite power and authority to execute, deliver and perform their respective
obligations under the Agreements, and that the Agreements have been duly
authorized by all necessary corporate action on the part of such parties, has
been executed and delivered by such parties and constitutes the legal, valid
and
binding obligation of such parties.
2. My
opinion expressed in paragraph c above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of laws relating to (1) bankruptcy, reorganization, insolvency, moratorium
or other similar laws now or hereafter in effect relating to creditors’ rights
generally, including, without limitation, the effect of statutory or other
laws
regarding fraudulent conveyances or preferential transfers, and (2) general
principles of equity upon the specific enforceability of any of the remedies,
covenants or other provisions of the Agreements and upon the availability of
injunctive relief or other equitable remedies and the application of principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) as such principles relate to, limit or affect
the enforcement of creditors’ rights generally and the discretion of the court
before which any proceeding for such enforcement may be brought; and (ii) I
express no opinion herein with respect to the validity, legality, binding effect
or enforceability of provisions for indemnification in the Agreements to the
extent such provisions may be held to be unenforceable as contrary to public
policy.
3. My
opinion expressed in paragraph e above relating to violations of United
States federal and New York statutes, regulations or orders applicable to the
Company is limited to such statutes, regulations or orders that in my experience
are typically applicable to a transaction of the nature contemplated by the
Agreements.
4. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Company and any other party, which would
expand, modify or otherwise affect the terms of the Agreements or the respective
rights or obligations of the parties there under.
I
am
admitted to practice in the State of New York, and I render no opinion herein
as
to matters involving or governed by the laws of any jurisdiction other than
the
State of New York and the federal laws of the United States of
America. I also express no opinion as to whether the laws of any
particular jurisdiction apply, and no opinion to the extent that the laws of
any
jurisdiction other than those identified above are applicable to the
Agreements.
This
opinion letter has been prepared and should be understood in accordance with
the
Legal Opinion Principles, 53 Bus. Law. 831 (1998), and
Guidelines for the Preparation of Closing Opinions, 57 Bus.
Law. 875 (2002), of the Committee on Legal Opinions, ABA Section
of Business Law.
Very
truly yours,
EXHIBIT
3
SECURITY
RELEASE CERTIFICATION
I. Release
of Security Interest
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase
thereof by Citigroup Global Markets Realty Corp. from the Seller named below
pursuant to that certain Master Mortgage Loan Purchase and Servicing Agreement,
dated as of _____ 1, 200_, as of the date and time of receipt by
______________________________ of $__________ for such Mortgage Loans (the
“Date
and Time of Sale”), and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Seller named below or its designees as of the
Date
and Time of Sale.
Name
and
Address of Financial Institution
(Name)
(Address)
By:
II. Certification
of Release
The
Seller named below hereby certifies to Citigroup Global Markets Realty Corp.
that, as of the Date and Time of Sale of the above mentioned Mortgage Loans
to
Citigroup Global Markets Realty Corp., the security interests in the Mortgage
Loans released by the above named corporation comprise all security interests
relating to or affecting any and all such Mortgage Loans. The Seller warrants
that, as of such time, there are and will be no other security interests
affecting any or all of such Mortgage Loans.
| Seller | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 200_, [SELLER] (“Seller”) as the Seller under that
certain Master Mortgage Loan Purchase and Servicing Agreement, dated as of
____
1, 200_ (the “Agreement”) does hereby sell, transfer, assign, set over and
convey to Citigroup Global Markets Realty Corp. as Purchaser under the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of the Seller in and to the Mortgage Loans listed
on
the Mortgage Loan Schedule attached hereto, together with the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 6.03 of the Agreement, the Seller has delivered
to
the Purchaser the documents for each Mortgage Loan to be purchased as set forth
in the Agreement. The contents of each related Servicing File required to be
retained by the Seller to service the Mortgage Loans pursuant to the Agreement
and thus not delivered to the Purchaser are and shall be held in trust by the
Seller for the benefit of the Purchaser as the owner thereof. The Seller’s
possession of any portion of each such Servicing File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the related Mortgage
Loan pursuant to the Agreement, and such retention and possession by the Seller
shall be in a custodial capacity only. The ownership of each Mortgage Note,
Mortgage, and the contents of the Mortgage File and Servicing File is vested
in
the Purchaser and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in such
custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Sections 7.01 and 7.02 of the Agreement and in the Confirmation, dated
_______________, 200__, are true and correct as of the date hereof, and that
all
statements made in the Seller’s Officer’s Certificate and all Attachments
thereto remain complete, true and correct in all respects as of the date
hereof:
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
| [SELLER] | |||
| Seller | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
EXHIBIT
5
CONTENTS
OF EACH 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 or delivered to the
Purchaser:
|
1.
|
The
following documents (collectively, the “Mortgage Loan
Documents”)
|
|
(a)
|
the
original Mortgage Note bearing all intervening endorsements necessary
to
show a complete chain of endorsements from the original payee to
the
applicable Seller, endorsed in blank, “Pay to the order of _____________,
without recourse”, and, if previously endorsed, signed in the name of the
last endorsee by a duly qualified officer of the last
endorsee. If the Mortgage Loan was acquired by the last
endorsee in a merger, the endorsement must be by “[name of last endorsee],
successor by merger to [name of predecessor]”. If the Mortgage
Loan was acquired or originated by the last endorsee while doing
business
under another name, the endorsement must be by “[name of last endorsee],
formerly known as [previous name]”;
|
|
(b)
|
with
respect to each Mortgage Loan which is not a MERS Mortgage Loan,
the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Mortgage shall be
assigned, with assignee’s name left blank. If the Mortgage Loan
was acquired by the last assignee in a merger, the Assignment of
Mortgage
must be made by “[name of last assignee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated
by the last assignee while doing business under another name, the
Assignment of Mortgage must be by “[name of last assignee], formerly known
as [previous name];
|
|
(c)
|
the
original of each guarantee executed in connection with the Mortgage
Note,
if any;
|
|
(d)
|
for
each Mortgage Loan which is not a MERS Mortgage Loan, the original
recorded Mortgage with evidence of recording thereon, and in the
case of
each MERS Mortgage Loan, the original Mortgage, noting the presence
of the
MIN for that Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or
if such
Mortgage Loan was not a MOM Loan at origination, the original Mortgage
and
the assignment to MERS, with evidence of recording thereon.. If in
connection with any Mortgage Loan, the applicable Seller has not
delivered
or caused to be delivered the original Mortgage with evidence of
recording
thereon on or prior to the related Closing Date because of a delay
caused
by the public recording office where such Mortgage has been delivered
for
recordation or because such Mortgage has been lost or because such
public
recording office retains the original recorded Mortgage, the Seller
shall
deliver or cause to be delivered to the Purchaser, (i) in the case
of a
delay caused by the public recording office, a copy of such Mortgage
certified by the applicable Seller, escrow agent, title insurer or
closing
attorney to be a true and complete copy of the original recorded
Mortgage
and (ii) in the case where a public recording office retains the
original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete
copy
of the original recorded Mortgage;
|
|
(e)
|
originals
of each assumption, modification, consolidation or extension agreement,
if
any;
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(f)
|
except
in the event that the original Mortgage is made to MERS, the originals
of
all intervening assignments of mortgage with evidence of recording
thereon
evidencing a complete chain of ownership from the originator of the
Mortgage Loan to the last assignee (or to MERS, if the Mortgage Loan
is
registered on the MERS System), or if any such intervening assignment
of
mortgage has not been returned from the applicable public recording
office
or has been lost or if such public recording office retains the original
recorded intervening assignments of mortgage, a photocopy of such
intervening assignment of mortgage, together with (i) in the case
of a
delay caused by the public recording office, an Officer’s Certificate of
the applicable Seller, escrow agent, closing attorney or the title
insurer
insuring the Mortgage stating that such intervening assignment of
mortgage
has been delivered to the appropriate public recording office for
recordation and that such original recorded intervening assignment
of
mortgage or a copy of such intervening assignment of mortgage certified
by
the appropriate public recording office to be a true and complete
copy of
the original recorded intervening assignment of mortgage will be
promptly
delivered to the Purchaser upon receipt thereof by the party delivering
the Officer’s Certificate or by the applicable Seller; or (ii) in the case
of an intervening assignment of mortgage where a public recording
office
retains the original recorded intervening assignment of mortgage
or in the
case where an intervening assignment of mortgage is lost after recordation
in a public recording office, a copy of such intervening assignment
of
mortgage with recording information thereon certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage;
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|
(g)
|
if
the Mortgage Note, the Mortgage, any Assignment of Mortgage or any
other
related document 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;
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|
(h)
|
original
of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any;
and
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(i)
|
the
original Primary Insurance Policy, if the Loan-to-Value Ratio is
greater
than 80.00%.
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2.
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Residential
loan application.
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|
3.
|
Mortgage
Loan closing statement.
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4.
|
Verification
of employment and income.
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5.
|
Verification
of acceptable evidence of source and amount of
downpayment.
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6.
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Credit
report on Mortgagor.
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7.
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Residential
appraisal report.
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8.
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Photograph
of the Mortgaged Property.
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9.
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Survey
of the Mortgaged Property.
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10.
|
Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e., map
or
plat, restrictions, easements, sewer agreements, home association
declarations, etc.
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11.
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All
required disclosure statements and statement of Mortgagor confirming
receipt thereof.
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12.
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If
available, termite report, structural engineer’s report, water potability
and septic certification.
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13.
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Sales
Contract, if applicable.
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14.
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Hazard
insurance policy.
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15.
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Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date of origination, insurance claim files, correspondence, current
and
historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in
a
mortgage loan file and which are required to document the Mortgage
Loan or
to service the Mortgage Loan.
|
The
original lender’s title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy has
not yet been issued) in the form of an ALTA mortgage title insurance policy,
containing each of the endorsements required by FNMA and insuring the Purchaser
and its successors and assigns as to the first priority lien of the Mortgage
in
the original principal amount of the Mortgage Loan shall be delivered within
180
days of the related Closing Date
EXHIBIT
6
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:
____________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
____ 1, 200_, we hereby authorize and request you to establish an account,
as a
Custodial Account, to be designated as “GreenPoint Mortgage Funding, Inc. in
trust for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage Loans.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
| [SELLER] | |||
| Seller | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Date: | |||
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. The full amount deposited at any time in the account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund (“BIF”) or the Savings Association Insurance Fund
(“SAIF”).
|
Depository
|
|||
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|
By:
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||
| Name: | |||
| Title: | |||
| Date: | |||
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
,
200_
To:
_____________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
____ 1, 200_, we hereby authorize and request you to establish an account,
as an
Escrow Account, to be designated as “GreenPoint Mortgage Funding, Inc. in trust
for the Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage
Loans.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. You may refuse any deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
| [SELLER] | |||
| Seller | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Date: | |||
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. The full amount deposited at any time in the account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund (“BIF”) or the Savings Association Insurance Fund
(“SAIF”).
|
Depository
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Date: | |||
EXHIBIT
8
SERVICING
ADDENDUM FOR SERVICING RETAINED MORTGAGE LOANS
Section
11.01 Servicer
to Act.
The
Servicer, as independent contract servicer, shall service and administer the
Servicing Retained Mortgage Loans in accordance with this Agreement, all
applicable laws, rules and regulations, the terms of the Mortgage Loan Documents
and the FNMA and FHLMC servicing guides, 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 Servicer may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the Servicer’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that the Servicer shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment thereof or of any principal or
interest payments, reduce the outstanding principal amount (except for actual
payments of principal), make additional advances of additional principal or
extend the final maturity date on such Mortgage
Loan. Without limiting the generality of the foregoing, the Servicer
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, 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 Property. If reasonably required by the Servicer, the
Purchaser shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Servicer may not waive
any
Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i) the Servicer determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the
value of such Prepayment Charge, or (ii) (A) the enforceability thereof is
limited (1) by bankruptcy, insolvency, moratorium, receivership, or other
similar law relating to creditors’ rights generally or (2) due to acceleration
in connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable
law. If the Servicer waives or does not collect all or a portion of a
Prepayment Charge relating to a Principal Prepayment in full due to any action
or omission of the Servicer, other than as provided above, the Servicer shall
deposit the amount of such Prepayment Charge (or such portion thereof as had
been waived for deposit) into the Custodial Account for distribution in
accordance with the terms of this Agreement.
The
Servicer shall notify MERS of the ownership interest of Purchaser in each MOM
Loan through the MORNET system or MIDANET system, as applicable, or any other
comparable system acceptable to MERS. At any time during the term of
this Agreement, Purchaser may direct Servicer to cause any MOM Loan to be
deactivated from the MERS System.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser’s reliance on the
Servicer.
Section
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Servicing Retained
Mortgage Loans are paid in full, the Servicer shall proceed diligently to
collect all payments due under each Servicing Retained Mortgage Loan when the
same shall become due and payable and shall, to the extent such procedures
shall
be consistent with this Agreement and the terms and provisions of any related
Primary Insurance Policy or LPMI 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 Servicer shall take special care in
ascertaining and estimating annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the Mortgage, will become
due and payable to the end that the installments payable by the Mortgagors
will
be sufficient to pay such charges as and when they become due and
payable.
Section
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use its best efforts, consistent with the procedures that the
Servicer would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Section
11.01. The Servicer shall use its best efforts to realize upon
defaulted Mortgage Loans in such a 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 Servicer shall not be required to expend its own
funds
toward the restoration of such property in excess of $2,000 unless it shall
determine in its discretion (i) that such restoration will increase the proceeds
of liquidation of the related Mortgage Loan to Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
the
Servicer through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 11.05. In the event
that any payment due under any Mortgage Loan is not paid when the
same becomes due and payable, or in the event the Mortgagor fails to perform
any
other covenant or obligation under the Mortgage Loan and such failure
continues beyond any applicable grace period, the Servicer shall take such
action as it shall deem to be in the best interest of the
Purchaser. In the event that any payment due under any Servicing
Retained Mortgage Loan remains delinquent for a period of 90 days or more,
the
Servicer shall commence foreclosure proceedings, provided that prior to
commencing foreclosure proceedings, the Servicer shall notify the Purchaser
in
writing of the Servicer’s intention to do so, and the Servicer shall not
commence foreclosure proceedings if the Purchaser objects to such action within
ten (10) Business Days of receiving such notice. In such connection,
the Servicer shall be responsible for all costs and expenses incurred by it
in
any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the related Mortgaged Property, as contemplated
in
Section 11.05.
(b) Notwithstanding
the foregoing provisions of this Section 11.03, with respect to
any Mortgage Loan as to which the Servicer has received actual notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the related Mortgaged Property the Servicer shall not either (i) obtain
title
to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action,
with respect to, such Mortgaged Property if, as a result of any such action,
the
Purchaser would be considered to hold title to, to be a mortgagee-in-possession
of, or to be an owner or operator of such Mortgaged Property within the meaning
of the Comprehensive Environmental Response, Compensation and Liability Act
of
1980, as amended from time to time, or any comparable law, unless the Servicer
has also previously determined, based on its reasonable judgment and a prudent
report prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 11.03 shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
11.05(vii).
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Purchaser to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Purchaser.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
11.05(vii).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied
in the following order of priority: first, to reimburse the Servicer for
any related unreimbursed Servicing Advances pursuant to Section 11.05(iii);
second, to pay accrued and unpaid interest on the Mortgage Loan, to the
date of the Final Recovery Determination, or if not in connection
with a Final Recovery Determination, to the Due Date prior to the Distribution
Date on which such amounts are to be distributed; and third, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Servicer as follows: first, to unpaid Servicing Fees;
and second, to the balance of the interest then due and
owing.
Section
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer 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, in
the
form of time deposit or demand accounts. The creation of any
Custodial Account shall be evidenced by a Custodial Account Letter Agreement
in
the form of Exhibit 6.
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received 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 Servicing Retained Mortgage Loans due on or before the Cut-off
Date:
(i) all
payments on account of principal on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including all
Prepayment Charges;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 11.10 and 11.11, 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 the loan documents or applicable
law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(vi) all
Monthly Advances;
(vii) all
proceeds of any Servicing Retained Mortgage Loan repurchased in accordance
with
Sections 7.03 and 7.04 and all amounts required to be deposited by the Servicer
in connection with shortfalls in principal amount of Qualified Substitute
Mortgage Loans pursuant to Section 7.03;
(viii) any
amounts required to be deposited by the Servicer pursuant to Section 11.11
in
connection with the deductible clause in any blanket hazard insurance
policy. Such deposit shall be made from the Servicer’s own funds,
without reimbursement therefor;
(ix) any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Section 11.13;
(x) any
amounts required to be deposited in the Custodial Account pursuant to Sections
11.19 or 11.20; and
(xi) with
respect to each Principal Prepayment in full or in part, an amount (to be paid
by the Servicer out of its own funds without reimbursement therefor) which,
when
added to all amounts allocable to interest received in connection with such
Principal Prepayment, equals one month’s interest on the amount of principal so
prepaid at the Mortgage Interest Rate; provided, however, that in no event
shall
the aggregate of deposits made by the Servicer pursuant to this clause (xi)
exceed the aggregate amount of the Servicer’s servicing compensation in the
calendar month in which such deposits are required.
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 11.01, need not be deposited by the Servicer
in the Custodial Account. Such Custodial Account shall be an Eligible
Account. Any interest or earnings on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the
Servicer and the Servicer shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to Section 11.05(iii). The
Servicer shall give notice to the Purchaser of the location of the Custodial
Account when established and prior to any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Servicer shall, on or before twelve o’clock noon
Eastern time on such Business Day, withdraw from the Custodial Account any
and
all amounts payable to the Purchaser and remit such amounts to the Purchaser
by
wire transfer of immediately available funds.
Section
11.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Section 11.14;
(ii) to
reimburse itself for Monthly Advances, the Servicer’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
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Servicer’s right thereto shall be prior to
the rights of Purchaser, except that, where the Seller is required to repurchase
a Servicing Retained Mortgage Loan pursuant to Section 7.03, 7.04 or 7.05,
the
Servicer’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to Section 7.03, 7.04 or 7.05, and
all other amounts required to be paid to the Purchaser with respect to such
Servicing Retained Mortgage Loans;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of such reimbursement, the Servicer’s right thereto
shall be prior to the rights of the Purchaser, except that, where the Seller
is
required to repurchase a Servicing Retained Mortgage Loan pursuant to Section
7.03, 7.04 or 7.05, the Servicer’s right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase Price pursuant
to
Section 7.03, 7.04 or 7.05 and all other amounts required to be paid to the
Purchaser with respect to such Servicing Retained Mortgage Loans;
(iv) to
pay to
itself pursuant to Section 11.22 as servicing compensation (a) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Distribution Date), and (b) the Servicing Fee from
that portion of any payment or recovery as to interest on a particular Mortgage
Loan;
(v) to
pay to
itself with respect to each Servicing Retained Mortgage Loan that has been
repurchased pursuant to Section 7.03, 7.04 or 7.05 all amounts received thereon
and not distributed as of the date on which the related Repurchase Price is
determined;
(vi) to
reimburse itself for any Monthly Advance previously made which the Servicer
has
determined to be a Nonrecoverable Monthly Advance;
(vii) to
pay,
or to reimburse itself for advances in respect of, expenses incurred in
connection with any Mortgage Loan pursuant to Section 11.03(b), but
only to the extent of amounts received in respect of the Mortgage
Loans to which such expense is attributable;
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Servicer 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 pursuant to such subclauses (ii) - (vii) above. The
Servicer shall provide written notification in the form of an Officers’
Certificate to the Purchaser, on or prior to the next succeeding Distribution
Date, upon making any withdrawals from the Custodial Account pursuant to
subclause (vi) above.
Section
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer 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, in the form of time deposit or demand accounts. The
creation of any Escrow Account shall be evidenced by Escrow Account Letter
Agreement in the form of Exhibit 7.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged
Property. The Servicer shall make withdrawals therefrom 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
11.08. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution other than
interest on escrowed funds required by law to be paid to the Mortgagor and,
to
the extent required by law, the Servicer 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.
Section
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer (i) to effect timely
payments of ground rents, taxes, assessments, water rates, hazard insurance
premiums, Primary Insurance Policy premiums, if applicable, and comparable
items, (ii) to reimburse the Servicer for any Servicing Advance made by the
Servicer with respect to a related Mortgage Loan but only from amounts received
on the related Mortgage Loan which represent late 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 Servicer, or to the
Mortgagor to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, or (vii) to clear and terminate the Escrow
Account on the termination of this Agreement.
Section
11.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance Policies
and LPMI Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer 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 Insurance Policy and LPMI Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including insurance 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 Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage and applicable
law. To the extent that the Mortgage does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor at the time they first become due. The Servicer 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.
The
Servicer shall maintain in full force and effect, a Primary Insurance Policy,
issued by a Qualified Insurer, with respect to each Mortgage Loan for which
such
coverage is required. Such coverage shall be maintained until the
Loan-to-Value Ratio of the related Mortgage Loan is reduced to that amount
for
which FNMA no longer requires such insurance to be maintained. The
Servicer will not cancel or refuse to renew any Primary Insurance Policy in
effect on the related Closing Date that is required to be kept in force under
this Agreement unless a replacement Primary Insurance Policy for such cancelled
or non- renewed policy is obtained from and maintained with a Qualified
Insurer. The Servicer shall not take any action which would result in
non-coverage under any applicable Primary Insurance Policy or LPMI Policy of
any
loss which, but for the actions of the Servicer, would have been covered
thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 11.19, the
Servicer shall promptly notify the insurer under the related Primary Insurance
Policy or LPMI 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 Insurance Policy or LPMI Policy. If such Primary
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Servicer shall obtain a replacement Primary Insurance Policy
as
provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy or LPMI Policy in a timely fashion in accordance with
the terms of such policies and, in this regard, to take such action as shall
be
necessary to permit recovery under any Primary Insurance Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 11.04, any
amounts collected by the Servicer under any Primary Insurance Policy or LPMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 11.05.
Section
11.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made
only upon obtaining the consent of the Purchaser, which consent shall not be
unreasonably withheld. In any case, the Custodial Account and Escrow
Account shall be Eligible Accounts.
Section
11.10 Maintenance
of Hazard Insurance.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
hazard insurance policy in a timely fashion in accordance with the terms of
such
policies and, in this regard, to take such action as shall be necessary to
permit recovery under any hazard insurance policy. The Servicer shall cause
to
be maintained for each Mortgage Loan fire and hazard insurance with extended
coverage as is customary in the area where the Mortgaged Property is located
in
an amount which is at least equal to the lesser of (i) the amount necessary
to
fully compensate for any damage or loss to the improvements which are a part
of
such property on a replacement cost basis or (ii) the outstanding principal
balance of the Mortgage Loan, in each case in an amount not less than such
amount as is necessary to prevent the Mortgagor and/or the Mortgagee from
becoming a co-insurer. If the Mortgaged Property is in an area
identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map issued
by
the Flood Emergency Management Agency as having special flood hazards and such
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the lesser
of (i) the outstanding principal balance of the Mortgage Loan or (ii) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended. The Servicer also shall maintain on any REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the lesser of (i) the maximum insurable value of the improvements which
are a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan at the time it became an REO Property plus accrued interest at
the
Mortgage Interest Rate and related Servicing Advances, liability insurance
and,
to the extent required and available under the National Flood Insurance Act
of
1968 or the Flood Disaster Protection Act of 1973, as amended, flood insurance
in an amount as provided above. Pursuant to Section 11.04, any
amounts collected by the Servicer 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 the Servicer’s normal servicing procedures, shall be deposited
in the Custodial Account, subject to withdrawal pursuant to Section
11.05. Any cost incurred by the Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to the
Purchaser, be added to the unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so
permit. It is understood and agreed that no earthquake or other
additional insurance need be required by the Servicer or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such applicable 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 Servicer, or upon request to the Purchaser, and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
of, or material change in, coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor’s freedom of choice in selecting either
his insurance carrier or agent, provided, however, that the Servicer shall
not
accept any such insurance policies from insurance companies unless such
companies currently reflect a General Policy Rating of A:VI or better in Best’s
Key Rating Guide and are licensed to do business in the state wherein the
property subject to the policy is located.
Section
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all Mortgaged Properties securing the Mortgage Loans,
then, to the extent such policy provides coverage in an amount equal to the
amount required pursuant to Section 11.10 and otherwise complies with all other
requirements of Section 11.10, the Servicer shall conclusively be deemed to
have
satisfied its obligations as set forth in Section 11.10, it being understood
and
agreed that such policy may contain a deductible clause, in which case the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with Section
11.10, and there shall have been one or more losses 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 Servicer 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. The Servicer shall deliver to the Purchaser a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
thirty days prior written notice to the Purchaser.
Section
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of FNMA and FHLMC 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 and errors and omissions insurance shall be
in the form of the Mortgage Banker’s Blanket Bond and shall protect and insure
the Servicer against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of such persons. Such
fidelity bond shall also protect and insure the Servicer 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 11.12 requiring the fidelity
bond and errors and omissions insurance shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FNMA in the FNMA Servicing Guide
or by FHLMC in the FHLMC Servicers’ and Servicers’ Guide. Upon
request of the Purchaser, the Servicer shall cause to be delivered to the
Purchaser a certified true copy of the fidelity bond and insurance policy and
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
days’ prior written notice to the Purchaser.
Section
11.13 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 person designated by the Purchaser, or in the event such person
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an opinion of counsel obtained by the Servicer 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.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate each REO Property (and may temporarily
rent the same) 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. If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are
held, the Servicer shall manage, conserve, protect and operate each REO Property
in a manner which does not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by such REMIC of any “income from non-permitted assets”
within the meaning of Section 860F(a)(2)(B) of the Code or any “net income from
foreclosure property” within the meaning of Section 860G(c)(2) of the
Code. The Servicer 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 annually thereafter. The Servicer 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 Servicer to the Purchaser. The Servicer shall use
its best efforts to dispose of the REO Property as soon as possible and shall
sell such REO Property in any event within one year after title has been taken
to such REO Property, unless the Servicer determines, and gives appropriate
notice to the Purchaser, that a longer period is necessary for the orderly
liquidation of such REO Property. If a period longer than one year is
necessary to sell any REO property, (i) the Servicer shall report monthly to
the
Purchaser as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Purchaser, a purchase money mortgage is
taken in connection with such sale, such purchase money mortgage shall name
the
Servicer as mortgagee, and a separate servicing agreement between the Servicer
and the Purchaser shall be entered into with respect to such purchase money
mortgage. Notwithstanding the foregoing, if a REMIC election is made
with respect to the arrangement under which the Mortgage Loans and
the REO Property are held, such REO Property shall be disposed of within three
years or such other period as may be permitted under Section 860G(a)(8) of
the
Code.
With
respect to each REO Property, the Servicer shall hold all funds collected and
received in connection with the operation of the REO Property in the Custodial
Account. The Servicer shall account for each REO Property on a
property by property basis.
The
Servicer shall deposit or cause to be deposited, on a daily basis into the
Custodial Account all revenues received with respect to the related REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 11.10 hereof and the fees
of any managing agent acting on behalf of the Servicer.
The
Servicer shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by
such other information as the Purchaser shall reasonably request.
Each
REO
Disposition shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer deems to be in the best interest of the
Purchaser only with the prior written consent of the Purchaser. If as
of the date title to any REO Property was acquired by the Servicer there were
outstanding unreimbursed Servicing Advances with respect to the REO Property,
the Servicer, upon an REO Disposition of such REO Property, shall be entitled
to
reimbursement for any related unreimbursed Servicing Advances from proceeds
received in connection with such REO Disposition. The proceeds from
the REO Disposition, net of any payment to the Servicer as provided above,
shall
be deposited in the Custodial Account for distribution on the succeeding
Distribution Date in accordance with Section 5.01.
Section
11.14 Distributions.
On
each
Distribution Date, the Servicer shall distribute to the Purchaser 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 11.05; plus (ii) all Monthly Advances, if any,
which
the Servicer is obligated to distribute pursuant to Section 11.21, minus (iii)
any amounts attributable to Principal Prepayments received after the last day
of
the calendar month immediately preceding the related Distribution Date and
(iv)
any amounts attributable to Monthly Payments collected but due on a Due Date
or
Dates subsequent to the preceding Determination Date.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the Mortgage Loans owned and held by the Purchaser, and shall be made
by wire transfer of immediately available funds to the account of the Purchaser
at a bank or other entity having appropriate facilities therefor, if the
Purchaser shall have so notified the Servicer or by check mailed to the address
of the Purchaser.
With
respect to any remittance received by the Purchaser on or after the first
Business Day following the Business Day on which such payment was due, the
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the rate of interest as is publicly announced from time
to
time at its principal office by JPMorgan Chase Bank, New York, New York, as
its
prime lending rate, adjusted as of the date of each change, plus three
percentage points, but in no event greater than the maximum amount permitted
by
applicable law. Such interest shall be paid by the Servicer to the
Purchaser on the date such late payment is made and shall cover the period
commencing with the day following such first Business Day and ending with the
Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with such late payment. The payment
by the Servicer of any such interest shall not be deemed an extension of time
for payment or a waiver of any Event of Default by the Servicer.
Section
11.15 Remittance
Reports.
No
later
than the fifth Business Day of each month, the Servicer shall furnish to the
Purchaser or its designee a computer tape containing, and a hard copy of, the
monthly data. On the Business Day following each Determination Date,
the Servicer shall deliver to the Purchaser or its designee by telecopy (or
by
such other means as the Servicer and the Purchaser may agree from time to time)
a computer tape containing, and a hard copy of, the determination data with
respect to the related Distribution Date, together with such other information
with respect to the Mortgage Loans as the Purchaser may reasonably
require to allocate distributions made pursuant to this Agreement and provide
appropriate statements with respect to such distributions. On the
same date, the Servicer shall forward to the Purchaser by overnight mail a
computer readable magnetic tape containing the information set forth in the
Remittance Report with respect to the related Distribution Date.
Section
11.16 Statements
to the Purchaser.
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward
to
the Purchaser or its designee a statement prepared by the Servicer setting
forth
the status of the Custodial Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Custodial Account
of
each category of deposit specified in Section 11.04 and each category of
withdrawal specified in Section 11.05.
In
addition, not more than sixty days after the end of each calendar year, the
Servicer shall furnish to each Person who was the Purchaser at any time during
such calendar year, (i) as to the aggregate of remittances for the applicable
portion of such year, an annual statement in accordance with the requirements
of
applicable federal income tax law, and (ii) a listing of the principal balances
of the Mortgage Loans outstanding at the end of such calendar
year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to any Purchaser pursuant to any applicable law with respect to
the Mortgage Loans and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with
such information concerning the Mortgage Loans as is necessary for
the Purchaser to prepare its federal income tax return as any Purchaser may
reasonably request from time to time.
Section
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 11.13, with respect to any
REO
Property, the Servicer shall furnish to the Purchaser a statement covering
the
Servicer’s efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month, together with the operating statement. Such statement shall be
accompanied by such other information as the Purchaser shall reasonably
request.
Section
11.18 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 Servicer shall submit
to the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
11.19 Assumption
Agreements.
The
Servicer shall, 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 applicable thereto; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law from doing so or if
the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Insurance Policy or LPMI Policy, if any. If the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall 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 not allowed pursuant to this
Section 11.19, the Servicer, with the prior written consent of the insurer
under
the Primary Insurance Policy or LPMI Policy, 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.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is
located. With respect to an assumption or substitution of liability,
Mortgage Interest Rate, the amount of the Monthly Payment, and the final
maturity date of such Mortgage Note may not be changed. The Servicer
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. Any fee collected by the
Servicer for entering into an assumption or substitution of liability agreement
in excess of 1% of the outstanding principal balance of the Mortgage
Loan shall be deposited in the Custodial Account pursuant to Section
11.04.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Servicer 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
Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 11.19, 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
11.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer
of a notification that payment in full will be escrowed in a manner customary
for such purposes, the Servicer will immediately notify the Purchaser by a
certification of a servicing officer of the Servicer (a “Servicing Officer”),
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 11.04 have been or
will be so deposited, and shall request execution of any document necessary
to
satisfy the Mortgage Loan and delivery to it of the portion of the
Mortgage File held by the Purchaser or the Purchaser’s designee. Upon
receipt of such certification and request, the Purchaser, shall promptly release
the related mortgage documents to the Servicer and the Servicer shall prepare
and process any satisfaction or release. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the Custodial Account or the Purchaser.
In
the
event the Servicer 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 Servicer, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Servicer shall maintain
the fidelity bond insuring the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of
the Mortgage Loan, including for this purpose collection under any
Primary Insurance Policy or LPMI Policy, the Purchaser shall, upon request
of
the Servicer and delivery to the Purchaser of a servicing receipt signed by
a
Servicing Officer, release the requested portion of the Mortgage File held
by
the Purchaser to the Servicer. Such servicing receipt shall obligate
the Servicer to return the related Mortgage documents to the Purchaser when
the
need therefor by the Servicer 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 Servicer has
delivered to the Purchaser 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 to the Servicer.
Section
11.21 Monthly
Advances by the Servicer.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date,
the Servicer shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 11.01, of principal (due after the Cut-off Date) and
interest not allocable to the period prior to the Cut-off Date, at the Mortgage
Interest Rate net of the Servicing Fee, which were due on a Mortgage
Loan and delinquent at the close of business on the related Determination
Date.
(b) The
obligation of the Servicer to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any Mortgage Loan or REO Property, shall continue until a Final
Recovery Determination in connection therewith; provided that, notwithstanding
anything herein to the contrary, no Monthly Advance shall be required to be
made
hereunder by the Servicer if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Servicer
that it has made a Nonrecoverable Monthly Advance or that any proposed Monthly
Advance, if made, would constitute a Nonrecoverable Monthly Advance, shall
be
evidenced by an Officers’ Certificate delivered to the Purchaser.
Section
11.22 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall, subject to Section
11.04(xi), be entitled to withdraw from the Custodial Account or to retain
from
interest payments on the Mortgage Loans the amounts provided for as
the Servicer’s Servicing Fee. Additional servicing compensation in
the form of assumption fees, as provided in Section 11.19, and late payment
charges or otherwise shall be retained by the Servicer to the extent not
required to be deposited in the Custodial Account. The Servicer shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided for.
Section
11.23 Special
Remittance Provisions for Principal Prepayments.
The
Purchaser shall have the right to direct the Servicer to modify the remittance
cycle applicable to Principal Payments in full received on
any Mortgage Loan by remitting to the Purchaser on any Distribution
Date all Principal Prepayments in full received by the Servicer prior to the
related Determination Date, plus any interest collected on such Principal
Prepayments, to the extent not previously remitted to the
Purchaser. In connection with the foregoing, the Servicer
shall not be required to pay the amount set forth in Section 11.04 (xi) with
respect to the related Mortgage Loans and the report by the Servicer
shall reflect such revised remittance cycle.
Section
11.24 Statement
as to Compliance.
(a) The
Servicer will deliver to the Purchaser not later than March 15th of each
year, an
Officers’ Certificate (each, an “Annual Statement of Compliance”) stating, as to
each signatory thereof, that (i) a review of the activities of the Servicer
during the preceding 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 Servicer 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 officer and the nature and status thereof. Copies of such
statement shall be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans.
(b) Not
later
than March 15th
of each year (or if not a Business Day, the immediately preceding Business
Day)
or at any other time upon thirty (30) days written request, the Servicer shall
deliver to the Purchaser or its designee and, if the Mortgage Loans are being
master serviced by a master servicer in a securitization transaction (the
“Master Servicer”), to the Master Servicer an Officer’s Certificate for the
benefit of the Master Servicer or the Purchaser or its designee, as applicable,
and their respective officers, directors and affiliates, executed by an officer
of the Servicer and certifying as to the following matters:
(i) Based
on my knowledge, the information
in the Annual Statement of Compliance, the Annual Independent Public
Accountant’s Servicing Report delivered pursuant to Section 11.25 of the
Servicing Addendum (the “Annual Independent Public Accountant’s Servicing
Report”) and all servicing reports, officer’s certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Master Servicer
and the Purchaser or its designee, as applicable, 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 light of the circumstances under
which
such statements were made, not misleading as of the date of this
certification;
(ii) The
servicing information required to be
provided to the Master Servicer and the Purchaser or its designee, as
applicable, by the Servicer under this Agreement have been provided to the
Master Servicer and the Purchaser or its designee, as
applicable;
(iii) I
am responsible for reviewing the
activities performed by the Servicer under the Agreement and based upon the
review required by this Agreement, and except as disclosed in the Annual
Statement of Compliance or the Annual Independent Public Accountant’s Servicing
Report submitted to the Master Servicer and the Purchaser or its designee,
as
applicable, the Servicer has, as of the date of this certification fulfilled
its
obligations under this Agreement; and
(iv) I
have
disclosed to the Master Servicer and the Purchaser or its designee, as
applicable, all significant deficiencies relating to the Servicer’s compliance
with the minimum servicing standards in accordance with a review conducted
in
compliance with the Uniform Single Attestation Program for Mortgage Bankers
or
similar standard as set forth in the Agreement.
(c) The
Servicer shall indemnify and hold harmless the Master Servicer and the Purchaser
or its designee, as applicable, and their respective officers, directors, agents
and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer or any of
its
officers, directors, agents or affiliates of its obligations under this Section
11.24 or the negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Master Servicer or the Purchaser or its
designee, as applicable, then the Servicer agrees that it shall contribute
to
the amount paid or payable by the Master Servicer or the Purchaser or its
designee, as applicable, as a result of the losses, claims, damages or
liabilities of the Master Servicer or the Purchaser or its designee, as
applicable, in such proportion as is appropriate to reflect the relative fault
of the Master Servicer or the Purchaser or its designee, as applicable, on
the
one hand and the Servicer on the other in connection with a breach of the
Servicer’s obligations under this Section 11.24 or the Servicer’s negligence,
bad faith or willful misconduct in connection therewith.
Section
11.25 [Reserved].
Section
11.26 Notification
of Adjustments.
On
each
Adjustment Date, the Servicer shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of
the related Mortgage and Mortgage Note. The Servicer shall execute and deliver
the notices required by each Mortgage and Mortgage Note regarding interest
rate
adjustments. The Servicer also shall provide timely notification to the
Purchaser of all applicable data and information regarding such interest rate
adjustments and the Servicer’s methods of implementing such interest rate
adjustments. Upon the discovery by the Servicer or the Purchaser that the
Servicer has failed to adjust a Mortgage Interest Rate or a Monthly Payment
pursuant to the terms of the related Mortgage Note and Mortgage, the Servicer
shall immediately deposit in the Custodial Account from its own funds the amount
of any interest loss caused thereby without reimbursement therefor.
Section
11.27 Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC and any
other federal or state banking or insurance regulatory authority that may
exercise authority over the Purchaser access to the documentation regarding
the Mortgage Loans serviced by the Servicer required by applicable
laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of the Servicer. In addition, access to the documentation will be
provided to the Purchaser and any Person identified to the Servicer by the
Purchaser without charge, upon reasonable request during normal business hours
at the offices of the Servicer.
Section
11.28 Reports
and Returns to be Filed by the Servicer.
The
Servicer shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by such Sections 6050H, 6050J and 6050P of the Code.
Section
11.29 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 Servicer shall not
take any action, cause the REMIC to take any action or fail to take (or fail
to
cause to be taken) any action that, under the REMIC Provisions, if taken or
not
taken, as the case may be, could (i) endanger the status of the REMIC as a
REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on “prohibited transactions” as defined 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 Servicer 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.
Section
11.30 [Reserved].
Section
11.31 Superior
Liens.
With
respect to each Second Lien Mortgage Loan, the Servicer shall, for the
protection of the Purchaser’s interest, file (or cause to be filed) of record a
request for notice of any action by a superior lienholder where permitted by
local law and whenever applicable state law does not require that a junior
lienholder be named as a party defendant in foreclosure proceedings in order
to
foreclose such junior lienholder’s equity of redemption. The Servicer
shall also notify any superior lienholder in writing of the existence of the
Mortgage Loan and request notification of any action (as described below) to
be
taken against the Mortgagor or the Mortgaged Property by the superior
lienholder.
If
the
Servicer is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Servicer shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The
Servicer shall make a Servicing Advance of the funds necessary to cure the
default or reinstate the superior lien if the Servicer determines that such
Servicing Advance is in the best interests of the Purchaser. The
Servicer shall not make such a Servicing Advance except to the extent that
it
determines in its reasonable good faith judgment that such advance will be
recoverable from Liquidation Proceeds on the related Mortgage
Loan. The Servicer shall thereafter take such action as is necessary
to recover the amount so advanced.
Section
11.32 Subservicing
Agreements Between the Servicer and Subservicers.
The
Servicer may arrange for the subservicing of any Mortgage Loan by a Subservicer
pursuant to a Subservicing Agreement; provided that such subservicing
arrangement and the terms of the related Subservicing Agreement must provide
for
the servicing of such Mortgage Loans in a manner consistent with the servicing
arrangements contemplated hereunder. Each Subservicer shall be (i)
authorized to transact business 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 (ii) a Xxxxxxx Mac or Xxxxxx
Mae approved mortgage servicer. Notwithstanding the provisions of any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer or a Subservicer or reference
to
actions taken through the Servicer or otherwise, the Servicer shall remain
obligated and liable to the Purchaser and its successors and assigns for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. Every Subservicing Agreement entered into by the Servicer
shall contain a provision giving the successor servicer the option to terminate
such agreement in the event a successor servicer is appointed. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as an agent of the Servicer with the same force
and
effect as if performed directly by the Servicer.
For
purposes of this Agreement, the Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Servicer.
Section
11.33 Successor
Subservicers.
Any
Subservicing Agreement shall provide that the Servicer shall be entitled to
terminate any Subservicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Section 11.32. Any Subservicing
Agreement shall include the provision that such agreement may be immediately
terminated by any successor to the Servicer without fee, in accordance with
the
terms of this Agreement, in the event that the Servicer (or any successor to
the
Servicer) shall, for any reason, no longer be the servicer of the related
Mortgage Loans (including termination due to an Event of Default).
Section
11.34 No Contractual Relationship Between Subservicer and
Purchaser.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Servicer alone and the Purchaser shall not be deemed a
party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Section
11.32.
Section
11.35 Assumption or Termination of Subservicing Agreement by Successor
Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Servicer hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Servicer’s rights and obligations under any Subservicing Agreement then
in force between the Servicer and a Subservicer shall be assumed simultaneously
by such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Subservicer.
The
Servicer shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Subservicing Agreement and an accounting of amounts collected and held by it
and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Subservicing Agreements to the assuming party.
EXHIBIT
9
SERVICING
ADDENDUM FOR SERVICING RELEASED MORTGAGE LOANS
|
Section
11.01
|
Servicer
to Act as Servicer.
|
The
Servicer, as independent contract servicer, shall service and administer the
Servicing Released Mortgage Loans in accordance with this Agreement, all
applicable laws, rules and regulations, the terms of the Mortgage Loan Documents
and the FNMA and FHLMC servicing guidelines 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 Servicer may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the Servicer’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that the Servicer shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment thereof or of any principal or
interest payments, reduce the outstanding principal amount (except for actual
payments of principal), make additional advances of additional principal or
extend the final maturity date on such Mortgage
Loan. Without limiting the generality of the foregoing, the Servicer
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, 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 Property. If reasonably required by the Servicer, the
Purchaser shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
The
Servicer shall notify MERS of the ownership interest of Purchaser in each MOM
Loan through the MORNET system or MIDANET system, as applicable, or any other
comparable system acceptable to MERS. At any time during the term of
this Agreement, Purchaser may direct Servicer to cause any MOM Loan to be
deactivated from the MERS System.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering Mortgage Loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser’s reliance on the
Servicer.
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Section
11.02
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the date hereof until the principal and interest on all Servicing Released
Mortgage Loans are paid in full, the Servicer shall proceed diligently to
collect all payments due under each Servicing Released Mortgage Loan when the
same shall become due and payable and shall, to the extent such procedures
shall
be consistent with this Agreement and the terms and provisions of any related
Primary 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 Servicer shall take special care in
ascertaining and estimating annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the Mortgage, will become
due and payable to the end that the installments payable by the Mortgagors
will
be sufficient to pay such charges as and when they become due and
payable.
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Section
11.03
|
Realization
Upon Defaulted Mortgage Loans.
|
(a) The
Servicer shall use its best efforts, consistent with the procedures that the
Servicer would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Section
11.01. The Servicer shall use its best efforts to realize upon
defaulted Mortgage Loans in such a 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 Servicer shall not be required to expend its own
funds
toward the restoration of such property in excess of $2,000 unless it shall
determine in its discretion (i) that such restoration will increase the proceeds
of liquidation of the related Mortgage Loan to Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
the
Servicer through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 11.05. In the event
that any payment due under any Mortgage Loan is not paid when the
same becomes due and payable, or in the event the Mortgagor fails to perform
any
other covenant or obligation under the Mortgage Loan and such failure
continues beyond any applicable grace period, the Servicer shall take such
action as it shall deem to be in the best interest of the
Purchaser. In the event that any payment due under any Servicing
Released Mortgage Loan remains delinquent for a period of 90 days or more,
the
Servicer shall commence foreclosure proceedings, provided that prior to
commencing foreclosure proceedings, the Servicer shall notify the Purchaser
in
writing of the Servicer’s intention to do so, and the Servicer shall not
commence foreclosure proceedings if the Purchaser objects to such action within
ten (10) Business Days of receiving such notice. In such connection,
the Servicer shall be responsible for all costs and expenses incurred by it
in
any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the related Mortgaged Property, as contemplated
in
Section 11.05.
(b) Notwithstanding
the foregoing provisions of this Section 11.03, with respect to
any Mortgage Loan as to which the Servicer has received actual notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the related Mortgaged Property the Servicer shall not either (i) obtain
title
to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action,
with respect to, such Mortgaged Property if, as a result of any such action,
the
Purchaser would be considered to hold title to, to be a mortgagee-in-possession
of, or to be an owner or operator of such Mortgaged Property within the meaning
of the Comprehensive Environmental Response, Compensation and Liability Act
of
1980, as amended from time to time, or any comparable law, unless the Servicer
has also previously determined, based on its reasonable judgment and a prudent
report prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 11.03 shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
11.05(v).
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Purchaser to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Purchaser.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
11.05(v).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied
in the following order of priority: first, to reimburse the Servicer for
any related unreimbursed Servicing Advances pursuant to Section 11.05(ii);
second, to pay accrued and unpaid interest on the Mortgage Loan, to the
date of the Final Recovery Determination, or if not in connection
with a Final Recovery Determination, to the Due Date prior to the Distribution
Date on which such amounts are to be distributed; and third, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Servicer as follows: first, to unpaid Servicing Fees;
and second, to the balance of the interest then due and
owing. The portion of the recovery so allocated to unpaid Servicing
Fees shall be reimbursed to the Servicer pursuant to Section
11.05(ii).
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Section
11.04
|
Establishment
of Custodial Accounts; Deposits in Custodial
Accounts.
|
The
Servicer 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, in
the
form of time deposit or demand accounts. The creation of any
Custodial Account shall be evidenced by a Custodial Account Letter Agreement
in
the form of Exhibit 6.
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received 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 Servicing Released Mortgage Loans due on or before the Cut-off
Date:
(i)
all
payments on account of principal on the Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans, including all
Prepayment Charges;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 11.10 and 11.11, 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 the loan documents or applicable
law;
(v)
all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(vi) all
proceeds of any Servicing Released Mortgage Loan repurchased in accordance
with
Sections 7.03, 7.04 and 7.05 and all amounts required to be deposited by the
Servicer in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Section 7.03;
(vii)
any
amounts required to be deposited by the Servicer pursuant to Section 11.11
in
connection with the deductible clause in any blanket hazard insurance
policy. Such deposit shall be made from the Servicer’s own funds,
without reimbursement therefor;
(viii)
any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Section 11.13; and
(ix)
any
amounts required to be deposited in the Custodial Account pursuant to Sections
11.19 or 11.20; and
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 11.01, need not be deposited by the Servicer
in the Custodial Account. Such Custodial Account shall be an Eligible
Account. Any interest or earnings on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the
Servicer and the Servicer shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to Section 11.05(iii). The
Servicer shall give notice to the Purchaser of the location of the Custodial
Account when established and prior to any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Servicer shall, on or before twelve o’clock noon
Eastern time on such Business Day, withdraw from the Custodial Account any
and
all amounts payable to the Purchaser and remit such amounts to the Purchaser
by
wire transfer of immediately available funds.
|
Section
11.05
|
Permitted
Withdrawals From the Custodial
Account.
|
The
Servicer may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Section 11.14;
(ii)
to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (ii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of such reimbursement, the Servicer’s right thereto
shall be prior to the rights of the Purchaser, except that, where the Seller
is
required to repurchase a Servicing Released Mortgage Loan, pursuant to Section
7.03 7.04 or 7.05, the Servicer’s right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase Price pursuant
to
Section 7.03, 7.04 or 7.05 and all other amounts required to be paid to the
Purchaser with respect to such Servicing Released Mortgage Loans;
(iii)
to
pay to
itself pursuant to Section 11.22 as servicing compensation (a) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Distribution Date), and (b) the Servicing Fee from
that portion of any payment or recovery as to interest on a particular Mortgage
Loan;
(iv)
to
pay to
itself with respect to each Servicing Released Mortgage Loan that has been
repurchased pursuant to Section 7.03, 7.04 or 7.05 all amounts received thereon
and not distributed as of the date on which the related Repurchase Price is
determined;
(v)
to
pay,
or to reimburse itself for advances in respect of, expenses incurred in
connection with any Mortgage Loan pursuant to Section 11.03(b), but
only to the extent of amounts received in respect of the Mortgage
Loans to which such expense is attributable;
(vi)
to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Servicer 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 pursuant to such subclauses (ii) - (v) above.
|
Section
11.06
|
Establishment
of Escrow Accounts; Deposits in Escrow
Accounts.
|
The
Servicer 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, in the form of time deposit or demand accounts. The
creation of any Escrow Account shall be evidenced by Escrow Account Letter
Agreement in the form of Exhibit 7.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged
Property. The Servicer shall make withdrawals therefrom 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
11.08. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution other than
interest on escrowed funds required by law to be paid to the Mortgagor and,
to
the extent required by law, the Servicer 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.
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Section
11.07
|
Permitted
Withdrawals From Escrow
Account.
|
Withdrawals
from the Escrow Account may be made by the Servicer (i) to effect timely
payments of ground rents, taxes, assessments, water rates, hazard insurance
premiums, Primary Insurance Policy premiums, if applicable, and comparable
items, (ii) to reimburse the Servicer for any Servicing Advance made by the
Servicer with respect to a related Mortgage Loan but only from amounts received
on the related Mortgage Loan which represent late 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 Servicer, or to the
Mortgagor to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, or (vii) to clear and terminate the Escrow
Account on the termination of this Agreement.
|
Section
11.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance
Policies and LPMI Policies; Collections
Thereunder.
|
With
respect to each Mortgage Loan, the Servicer 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 Insurance Policy and LPMI Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including insurance 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 Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage and applicable
law. To the extent that the Mortgage does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor at the time they first become due. The Servicer 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.
The
Servicer shall maintain in full force and effect, a Primary Insurance Policy,
issued by a Qualified Insurer, with respect to each Mortgage Loan for which
such
coverage is required. Such coverage shall be maintained until the
Loan-to-Value Ratio of the related Mortgage Loan is reduced to that amount
for
which FNMA no longer requires such insurance to be maintained. The
Servicer will not cancel or refuse to renew any Primary Insurance Policy in
effect on the Closing Date that is required to be kept in force under this
Agreement unless a replacement Primary Insurance Policy or LPMI Policy for
such
cancelled or non- renewed policy is obtained from and maintained with a
Qualified Insurer. The Servicer shall not take any action which would
result in non-coverage under any applicable Primary Insurance Policy or LPMI
Policy of any loss which, but for the actions of the Servicer, would have been
covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 11.19, the
Servicer shall promptly notify the insurer under the related Primary Insurance
Policy or LPMI 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 Insurance Policy or LPMI Policy. If such Primary
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Servicer shall obtain a replacement Primary Insurance Policy
as
provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy in a timely fashion in accordance with the terms of
such policies and, in this regard, to take such action as shall be necessary
to
permit recovery under any Primary Insurance Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 11.04, any amounts collected by
the Servicer under any Primary Insurance Policy shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 11.05.
|
Section
11.09
|
Transfer
of Accounts.
|
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made
only upon obtaining the consent of the Purchaser, which consent shall not be
unreasonably withheld. In any case, the Custodial Account and Escrow
Account shall be Eligible Accounts.
|
Section
11.10
|
Maintenance
of Hazard Insurance.
|
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
hazard insurance policy in a timely fashion in accordance with the terms of
such
policies and, in this regard, to take such action as shall be necessary to
permit recovery under any hazard insurance policy. The Servicer shall cause
to
be maintained for each Mortgage Loan fire and hazard insurance with extended
coverage as is customary in the area where the Mortgaged Property is located
in
an amount which is at least equal to the lesser of (i) the amount necessary
to
fully compensate for any damage or loss to the improvements which are a part
of
such property on a replacement cost basis or (ii) the outstanding principal
balance of the Mortgage Loan, in each case in an amount not less than such
amount as is necessary to prevent the Mortgagor and/or the Mortgagee from
becoming a co-insurer. If the Mortgaged Property is in an area
identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map issued
by
the Flood Emergency Management Agency as having special flood hazards and such
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the lesser
of (i) the outstanding principal balance of the Mortgage Loan or (ii) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended. The Servicer also shall maintain on any REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the lesser of (i) the maximum insurable value of the improvements which
are a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan at the time it became an REO Property plus accrued interest at
the
Mortgage Interest Rate and related Servicing Advances, liability insurance and,
to the extent required and available under the National Flood Insurance Act
of
1968 or the Flood Disaster Protection Act of 1973, as amended, flood insurance
in an amount as provided above. Pursuant to Section 11.04, any
amounts collected by the Servicer 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 the Servicer’s normal servicing procedures, shall be deposited
in the Custodial Account, subject to withdrawal pursuant to Section
11.05. Any cost incurred by the Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to the
Purchaser, be added to the unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so
permit. It is understood and agreed that no earthquake or other
additional insurance need be required by the Servicer or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such applicable 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 Servicer, or upon request to the Purchaser, and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
of, or material change in, coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor’s freedom of choice in selecting either
his insurance carrier or agent, provided, however, that the Servicer shall
not
accept any such insurance policies from insurance companies unless such
companies currently reflect a General Policy Rating of A:VI or better in Best’s
Key Rating Guide and are licensed to do business in the state wherein the
property subject to the policy is located.
|
Section
11.11
|
Maintenance
of Mortgage Impairment Insurance
Policy.
|
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all Mortgaged Properties securing the Mortgage Loans,
then, to the extent such policy provides coverage in an amount equal to the
amount required pursuant to Section 11.10 and otherwise complies with all other
requirements of Section 11.10, the Servicer shall conclusively be deemed to
have
satisfied its obligations as set forth in Section 11.10, it being understood
and
agreed that such policy may contain a deductible clause, in which case the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with Section
11.10, and there shall have been one or more losses 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 Servicer 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. Upon request of the Purchaser, the Servicer
shall cause to be delivered to the Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without thirty days prior written
notice to the Purchaser.
|
Section
11.12
|
Fidelity
Bond, Errors and Omissions
Insurance.
|
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of FNMA and FHLMC 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 and errors and omissions insurance shall be
in the form of the Mortgage Banker’s Blanket Bond and shall protect and insure
the Servicer against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of such persons. Such
fidelity bond shall also protect and insure the Servicer 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 11.12 requiring the fidelity
bond and errors and omissions insurance shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FNMA in the FNMA Servicing Guide
or by FHLMC in the FHLMC Servicers’ and Servicers’ Guide. The
Servicer shall deliver to the Purchaser a certified true copy of the fidelity
bond and insurance policy and 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 days’ prior written notice to the
Purchaser.
|
Section
11.13
|
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 person designated by the Purchaser, or in the event such person
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an opinion of counsel obtained by the Servicer 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.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate each REO Property (and may temporarily
rent the same) 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. If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are
held, the Servicer shall manage, conserve, protect and operate each REO Property
in a manner which does not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by such REMIC of any “income from non-permitted assets”
within the meaning of Section 860F(a)(2)(B) of the Code or any “net income from
foreclosure property” within the meaning of Section 860G(c)(2) of the
Code. The Servicer 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 annually thereafter. The Servicer 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 Servicer to the Purchaser. The Servicer shall use
its best efforts to dispose of the REO Property as soon as possible and shall
sell such REO Property in any event within one year after title has been taken
to such REO Property, unless the Servicer determines, and gives appropriate
notice to the Purchaser, that a longer period is necessary for the orderly
liquidation of such REO Property. If a period longer than one year is
necessary to sell any REO property, (i) the Servicer shall report monthly to
the
Purchaser as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Purchaser, a purchase money mortgage is
taken in connection with such sale, such purchase money mortgage shall name
the
Servicer as mortgagee, and a separate servicing agreement between the Servicer
and the Purchaser shall be entered into with respect to such purchase money
mortgage. Notwithstanding the foregoing, if a REMIC election is made
with respect to the arrangement under which the Mortgage Loans and
the REO Property are held, such REO Property shall be disposed of within three
years or such other period as may be permitted under Section 860G(a)(8) of
the
Code.
With
respect to each REO Property, the Servicer shall hold all funds collected and
received in connection with the operation of the REO Property in the Custodial
Account. The Servicer shall account for each REO Property on a
property by property basis.
The
Servicer shall deposit or cause to be deposited, on a daily basis into the
Custodial Account all revenues received with respect to the related REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 11.10 hereof and the fees
of any managing agent acting on behalf of the Servicer.
The
Servicer shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by
such other information as the Purchaser shall reasonably request.
Each
REO
Disposition shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer deems to be in the best interest of the
Purchaser only with the prior written consent of the Purchaser. If as
of the date title to any REO Property was acquired by the Servicer there were
outstanding unreimbursed Servicing Advances with respect to the REO Property,
the Servicer, upon an REO Disposition of such REO Property, shall be entitled
to
reimbursement for any related unreimbursed Servicing Advances from proceeds
received in connection with such REO Disposition. The proceeds from
the REO Disposition, net of any payment to the Servicer as provided above,
shall
be deposited in the Custodial Account for distribution on the succeeding
Distribution Date in accordance with Section 5.01.
|
Section
11.14
|
Distributions.
|
On
each
Distribution Date, the Servicer shall distribute to the Purchaser 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 11.05; minus (ii) any amounts attributable to
Principal Prepayments received after the last day of the calendar month
immediately preceding the related Distribution Date and (iii) any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the preceding Determination Date.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the Mortgage Loans owned and held by the Purchaser, and shall be made
by wire transfer of immediately available funds to the account of the Purchaser
at a bank or other entity having appropriate facilities therefor, if the
Purchaser shall have so notified the Servicer or by check mailed to the address
of the Purchaser.
With
respect to any remittance received by the Purchaser on or after the second
Business Day following the Business Day on which such payment was due, the
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the rate of interest as is publicly announced from time
to
time at its principal office by JPMorgan Chase Bank, New York, New York, as
its
prime lending rate, adjusted as of the date of each change, plus three
percentage points, but in no event greater than the maximum amount permitted
by
applicable law. Such interest shall be paid by the Servicer to the
Purchaser on the date such late payment is made and shall cover the period
commencing with the day following such second Business Day and ending with
the
Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with such late payment. The payment
by the Servicer of any such interest shall not be deemed an extension of time
for payment or a waiver of any Event of Default by the Servicer.
|
Section
11.15
|
Remittance
Reports.
|
No
later
than the fifth Business Day of each month, the Servicer shall furnish to the
Purchaser or its designee a computer tape containing, and a hard copy of, the
monthly data. On the Business Day following each Determination Date,
the Servicer shall deliver to the Purchaser or its designee by telecopy (or
by
such other means as the Servicer and the Purchaser may agree from time to time)
a computer tape containing, and a hard copy of, the determination data with
respect to the related Distribution Date, together with such other information
with respect to the Mortgage Loans as the Purchaser may reasonably
require to allocate distributions made pursuant to this Agreement and provide
appropriate statements with respect to such distributions. On the
same date, the Servicer shall forward to the Purchaser by overnight mail a
computer readable magnetic tape containing the information set forth in the
Remittance Report with respect to the related Distribution Date.
|
Section
11.16
|
Statements
to the Purchaser.
|
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward
to
the Purchaser or its designee a statement prepared by the Servicer setting
forth
the status of the Custodial Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Custodial Account
of
each category of deposit specified in Section 11.04 and each category of
withdrawal specified in Section 11.05.
In
addition, not more than sixty days after the end of each calendar year, the
Servicer shall furnish to each Person who was the Purchaser at any time during
such calendar year, (i) as to the aggregate of remittances for the applicable
portion of such year, an annual statement in accordance with the requirements
of
applicable federal income tax law, and (ii) a listing of the principal balances
of the Mortgage Loans outstanding at the end of such calendar
year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to any Purchaser pursuant to any applicable law with respect to
the Mortgage Loans and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with
such information concerning the Mortgage Loans as is necessary for
the Purchaser to prepare its federal income tax return as any Purchaser may
reasonably request from time to time.
|
Section
11.17
|
Real
Estate Owned Reports.
|
Together
with the statement furnished pursuant to Section 11.13, with respect to any
REO
Property, the Servicer shall furnish to the Purchaser a statement covering
the
Servicer’s efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month, together with the operating statement. Such statement shall be
accompanied by such other information as the Purchaser shall reasonably
request.
|
Section
11.18
|
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 Servicer shall submit
to the Purchaser a liquidation report with respect to such Mortgaged
Property.
|
Section
11.19
|
Assumption
Agreements.
|
The
Servicer shall, 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 applicable thereto; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law from doing so or if
the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Insurance Policy, if any. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall 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 not allowed pursuant to this
Section 11.19, the Servicer, with the prior written consent of the insurer
under
the Primary Insurance Policy, 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.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is
located. With respect to an assumption or substitution of liability,
Mortgage Interest Rate, the amount of the Monthly Payment, and the final
maturity date of such Mortgage Note may not be changed. The Servicer
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. Any fee collected by the
Servicer for entering into an assumption or substitution of liability agreement
in excess of 1% of the outstanding principal balance of the Mortgage
Loan shall be deposited in the Custodial Account pursuant to Section
11.04.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Servicer 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
Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 11.19, 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
11.20
|
Satisfaction
of Mortgages and Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer
of a notification that payment in full will be escrowed in a manner customary
for such purposes, the Servicer will immediately notify the Purchaser by a
certification of a servicing officer of the Servicer (a “Servicing Officer”),
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 11.04 have been or
will be so deposited, and shall request execution of any document necessary
to
satisfy the Mortgage Loan and delivery to it of the portion of the
Mortgage File held by the Purchaser or the Purchaser’s designee. Upon
receipt of such certification and request, the Purchaser, shall promptly release
the related mortgage documents to the Servicer and the Servicer shall prepare
and process any satisfaction or release. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the Custodial Account or the Purchaser.
In
the
event the Servicer 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 Servicer, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Servicer shall maintain
the fidelity bond insuring the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of
the Mortgage Loan, including for this purpose collection under any
Primary Insurance Policy, the Purchaser shall, upon request of the Servicer
and
delivery to the Purchaser of a servicing receipt signed by a Servicing Officer,
release the requested portion of the Mortgage File held by the Purchaser to
the
Servicer. Such servicing receipt shall obligate the Servicer to
return the related Mortgage documents to the Purchaser when the need therefor
by
the Servicer 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 Servicer has delivered to the Purchaser
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 to the
Servicer.
|
Section
11.21
|
Reserved.
|
|
Section
11.22
|
Servicing
Compensation.
|
As
compensation for its services hereunder, the Servicer shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the Mortgage Loans the amounts provided for as the Servicer’s
Servicing Fee. Additional servicing compensation in the form of
assumption fees, as provided in Section 11.19, and late payment charges or
otherwise shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account. The Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for.
Section 11.23 [Reserved]
|
Section
11.24
|
Statement
as to Compliance.
|
(a) The
Servicer will deliver to the Purchaser not later than March 15th of each
year, an
Officers’ Certificate (each, an “Annual Statement of Compliance”) stating, as to
each signatory thereof, that (i) a review of the activities of the Servicer
during the preceding 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 Servicer 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 officer and the nature and status thereof. Copies of such
statement shall be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans.
(b) Not
later than March 15th of each
year (or
if not a Business Day, the immediately preceding Business Day) or at any other
time upon thirty (30) days written request, the Servicer shall deliver to the
Purchaser or its designee and, if the Mortgage Loans are being master serviced
by a master servicer in a securitization transaction (the “Master Servicer”), to
the Master Servicer an Officer’s Certificate for the benefit of the Master
Servicer or the Purchaser or its designee, as applicable, and their respective
officers, directors and affiliates, executed by an officer of the Servicer
and
certifying as to the following matters:
(v) Based
on my knowledge, the information
in the Annual Statement of Compliance, the Annual Independent Public
Accountant’s Servicing Report delivered pursuant to Section 11.25 of the
Servicing Addendum (the “Annual Independent Public Accountant’s Servicing
Report”) and all servicing reports, officer’s certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Master Servicer
and the Purchaser or its designee, as applicable, 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 light of the circumstances under
which
such statements were made, not misleading as of the date of this
certification;
(vi) The
servicing information required to be
provided to the Master Servicer and the Purchaser or its designee, as
applicable, by the Servicer under this Agreement have been provided to the
Master Servicer and the Purchaser or its designee, as
applicable;
(vii) I
am responsible for reviewing the
activities performed by the Servicer under the Agreement and based upon the
review required by this Agreement, and except as disclosed in the Annual
Statement of Compliance or the Annual Independent Public Accountant’s Servicing
Report submitted to the Master Servicer and the Purchaser or its designee,
as
applicable, the Servicer has, as of the date of this certification fulfilled
its
obligations under this Agreement; and
(viii) I
have
disclosed to the Master Servicer and the Purchaser or its designee, as
applicable, all significant deficiencies relating to the Servicer’s compliance
with the minimum servicing standards in accordance with a review conducted
in
compliance with the Uniform Single Attestation Program for Mortgage Bankers
or
similar standard as set forth in the Agreement.
(c) The
Servicer shall indemnify and hold harmless the Master Servicer and the Purchaser
or its designee, as applicable, and their respective officers, directors, agents
and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer or any of
its
officers, directors, agents or affiliates of its obligations under this Section
11.24 or the negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Master Servicer or the Purchaser or its
designee, as applicable, then the Servicer agrees that it shall contribute
to
the amount paid or payable by the Master Servicer or the Purchaser or its
designee, as applicable, as a result of the losses, claims, damages or
liabilities of the Master Servicer or the Purchaser or its designee, as
applicable, in such proportion as is appropriate to reflect the relative fault
of the Master Servicer or the Purchaser or its designee, as applicable, on
the
one hand and the Servicer on the other in connection with a breach of the
Servicer’s obligations under this Section 11.24 or the Servicer’s negligence,
bad faith or willful misconduct in connection therewith.
|
Section
11.25
|
Notification
of Adjustments.
|
On
each
Adjustment Date, the Servicer shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of
the related Mortgage and Mortgage Note. The Servicer shall execute and deliver
the notices required by each Mortgage and Mortgage Note regarding interest
rate
adjustments. The Servicer also shall provide timely notification to the
Purchaser of all applicable data and information regarding such interest rate
adjustments and the Servicer’s methods of implementing such interest rate
adjustments. Upon the discovery by the Servicer or the Purchaser that the
Servicer has failed to adjust a Mortgage Interest Rate or a Monthly Payment
pursuant to the terms of the related Mortgage Note and Mortgage, the Servicer
shall immediately deposit in the Custodial Account from its own funds the amount
of any interest loss caused thereby without reimbursement therefor.
|
Section
11.26
|
Access
to Certain Documentation.
|
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC and any
other federal or state banking or insurance regulatory authority that may
exercise authority over the Purchaser access to the documentation regarding
the Mortgage Loans serviced by the Servicer required by applicable
laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of the Servicer. In addition, access to the documentation will be
provided to the Purchaser and any Person identified to the Servicer by the
Purchaser without charge, upon reasonable request during normal business hours
at the offices of the Servicer.
|
Section
11.27
|
Reports
and Returns to be Filed by the
Servicer.
|
The
Servicer shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by such Sections 6050H, 6050J and 6050P of the Code.
|
Section
11.28
|
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 Servicer shall not
take any action, cause the REMIC to take any action or fail to take (or fail
to
cause to be taken) any action that, under the REMIC Provisions, if taken or
not
taken, as the case may be, could (i) endanger the status of the REMIC as a
REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on “prohibited transactions” as defined 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 Servicer 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.
|
Section
11.29
|
[Reserved]
|
|
Section
11.30
|
Superior
Liens.
|
With
respect to each Second Lien Mortgage Loan, the Servicer shall, for the
protection of the Purchaser’s interest, file (or cause to be filed) of record a
request for notice of any action by a superior lienholder where permitted by
local law and whenever applicable state law does not require that a junior
lienholder be named as a party defendant in foreclosure proceedings in order
to
foreclose such junior lienholder’s equity of redemption. The Servicer
shall also notify any superior lienholder in writing of the existence of the
Mortgage Loan and request notification of any action (as described below) to
be
taken against the Mortgagor or the Mortgaged Property by the superior
lienholder.
If
the
Servicer is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Servicer shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The
Servicer shall make a Servicing Advance of the funds necessary to cure the
default or reinstate the superior lien if the Servicer determines that such
Servicing Advance is in the best interests of the Purchaser. The
Servicer shall not make such a Servicing Advance except to the extent that
it
determines in its reasonable good faith judgment that such advance will be
recoverable from Liquidation Proceeds on the related Mortgage
Loan. The Servicer shall thereafter take such action as is necessary
to recover the amount so advanced.
|
Section
11.31
|
Subservicing
Agreements Between the Servicer and
Subservicers.
|
The
Servicer may arrange for the subservicing of any Mortgage Loan by a Subservicer
pursuant to a Subservicing Agreement; provided that such subservicing
arrangement and the terms of the related Subservicing Agreement must provide
for
the servicing of such Mortgage Loans in a manner consistent with the servicing
arrangements contemplated hereunder. Each Subservicer shall be (i)
authorized to transact business 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 (ii) a Xxxxxxx Mac or Xxxxxx
Mae approved mortgage servicer. Notwithstanding the provisions of any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer or a Subservicer or reference
to
actions taken through the Servicer or otherwise, the Servicer shall remain
obligated and liable to the Purchaser and its successors and assigns for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. Every Subservicing Agreement entered into by the Servicer
shall contain a provision giving the successor servicer the option to terminate
such agreement in the event a successor servicer is appointed. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as an agent of the Servicer with the same force
and
effect as if performed directly by the Servicer.
For
purposes of this Agreement, the Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Servicer.
|
Section
11.32
|
Successor
Subservicers.
|
Any
Subservicing Agreement shall provide that the Servicer shall be entitled to
terminate any Subservicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Section 11.31. Any Subservicing
Agreement shall include the provision that such agreement may be immediately
terminated by any successor to the Servicer without fee, in accordance with
the
terms of this Agreement, in the event that the Servicer (or any successor to
the
Servicer) shall, for any reason, no longer be the servicer of the related
Mortgage Loans (including termination due to an Event of Default).
|
Section
11.33
|
No
Contractual Relationship Between Subservicer and
Purchaser.
|
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Servicer alone and the Purchaser shall not be deemed a
party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Section
11.31.
|
Section
11.34
|
Assumption
or Termination of Subservicing Agreement by Successor
Servicer.
|
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Servicer hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Servicer’s rights and obligations under any Subservicing Agreement then
in force between the Servicer and a Subservicer shall be assumed simultaneously
by such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Subservicer.
The
Servicer shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Subservicing Agreement and an accounting of amounts collected and held by it
and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Subservicing Agreements to the assuming party.
EXHIBIT
10
Seller’s
Underwriting Guidelines
EXHIBIT
11
FORM
OF
ANNUAL CERTIFICATION
|
|
Re:
|
The
[
|
]
agreement dated as of [
|
],
200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
_____________________________________, the _______________________ of [NAME
OF
SERVICER] (the “Company”) and, in such capacity, the officer in charge of the
Company’s responsibility on Exhibit 12 to the Agreement. I hereby
certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
|
1.
|
I
have reviewed the servicer compliance statement of the Company provided
in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),
the report on assessment of the Company’s compliance with the servicing
criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item
1122 of Regulation AB (the “Servicing Assessment”), the registered public
accounting firm’s attestation report provided in accordance with Rules
13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation
AB (the “Attestation Report”), and all other data, servicing reports,
officer’s certificates and other information relating to the performance
of the Company under the terms of the Agreement and the servicing
of the
Mortgage Loans by the Company during 200[ ] that were delivered to
the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the “Company Servicing
Information”);
|
|
2.
|
Based
on my knowledge, the reports and information comprising the Company
Servicing Information, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to
make the statements made, in the light of the circumstances under
which
such statements were made, not misleading as of the period covered
by, or
the date of such reports or information or the date of this
certification;
|
|
3.
|
Based
on my knowledge, all of the Company Servicing Information required
to be
provided by the Company under the Agreement has been provided to
the
[Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
|
|
4.
|
I
am responsible for reviewing the activities performed by the Company
as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except
as
disclosed in the Compliance Statement, the Servicing Assessment or
the
Attestation Report, the Company has fulfilled its obligations under
the
Agreement in all material respects;
and
|
|
5.
|
The
Compliance Statement required to be delivered by the Company pursuant
to
the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Company and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. The Servicing Assessment and the
Attestation Report cover all items of the servicing criteria identified
on
Exhibit 12 to the Agreement as applicable to the Company. 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. The following material instances of noncompliance identified
in
the Servicing Assessment and the Attestation Report relate to the
performance or obligations of the Company under the Agreement:
____________ (if none, state
“None.”)
|
|
Date: _________________________
|
|
|
By: _________________________
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
12
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
| [NAME OF COMPANY] [NAME OF SUBSERVICER] | |
| Date__________________________________________ | |
| By:___________________________________________ | |
| Name:______________________________________ | |
|
Title:______________________________________
|
