MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser and WACHOVIA MORTGAGE CORPORATION, Seller FIRST AMENDED AND RESTATED SELLER’S PURCHASE, WARRANTIES AND INTERIM SERVICING AGREEMENT Dated as of June 1, 2006
Exhibit
99.14b
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
and
WACHOVIA
MORTGAGE CORPORATION,
Seller
FIRST
AMENDED
AND RESTATED SELLER’S PURCHASE, WARRANTIES
AND
INTERIM SERVICING AGREEMENT
Dated
as
of June 1, 2006
TABLE
OF
CONTENTS
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ARTICLE
I
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DEFINITIONS
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Section
1.01.
|
Defined
Terms.
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1
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ARTICLE
II
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SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
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|
Section
2.01.
|
Agreement
to Purchase.
|
15
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Section
2.02.
|
Purchase
Price.
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15
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|
Section
2.03.
|
Servicing
of Mortgage Loans.
|
15
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|
Section
2.04.
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
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16
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Section
2.05.
|
Books
and Records.
|
16
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|
Section
2.06.
|
Transfer
of Mortgage Loans.
|
17
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Section
2.07.
|
Delivery
of Mortgage Loan Documents.
|
17
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|
Section
2.08.
|
Quality
Control Procedures.
|
18
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Section
2.09.
|
Closing.
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18
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|
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ARTICLE
III
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REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW OF MORTGAGE
LOANS
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Section
3.01.
|
Representations
and Warranties of the Seller.
|
19
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|
Section
3.02.
|
Representations
and Warranties as to Individual Mortgage Loans.
|
22
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|
Section
3.03.
|
Repurchase;
Substitution.
|
36
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|
Section
3.04.
|
Repurchase
of Mortgage Loans With First Payment Defaults.
|
38
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|
Section
3.05.
|
Purchase
Price Protection.
|
38
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|
ARTICLE
IV
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|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
||
|
Section
4.01.
|
Interim
Servicing of the Mortgage Loans.
|
39
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|
Section
4.02.
|
Collection
of Mortgage Loan Payments.
|
39
|
|
Section
4.03.
|
Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
|
40
|
|
Section
4.04.
|
Permitted
Withdrawals From the Custodial Account.
|
41
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|
Section
4.05.
|
Establishment
of Escrow Accounts; Deposits in Accounts.
|
42
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|
Section
4.06.
|
Permitted
Withdrawals From the Escrow Account.
|
42
|
i
|
Section
4.07.
|
Payment
of Taxes, Insurance and Charges; Maintenance of Primary Mortgage
Insurance; Collections Thereunder.
|
43
|
|
Section
4.08.
|
Transfer
of Accounts.
|
44
|
|
Section
4.09.
|
Maintenance
of Hazard Insurance.
|
45
|
|
Section
4.10.
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
45
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|
Section
4.11.
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
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46
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ARTICLE
V
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|
PAYMENTS
TO THE PURCHASER
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|
Section
5.01.
|
Distributions.
|
46
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|
Section
5.02.
|
Statements
to the Purchaser.
|
47
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ARTICLE
VI
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|
GENERAL
SERVICING PROCEDURES
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||
|
Section
6.01.
|
Assumption
Agreements.
|
47
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|
Section
6.02.
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
48
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|
Section
6.03.
|
Servicing
Compensation.
|
49
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|
Section
6.04.
|
Purchaser’s
Right to Examine Seller Records.
|
49
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|
Section
6.05.
|
Seller
Shall Provide Information as Reasonably Required.
|
50
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ARTICLE
VII
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|
THE
SELLER
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|
Section
7.01.
|
Indemnification;
Third Party Claims.
|
50
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|
Section
7.02.
|
Limitation
on Liability of the Seller and Others.
|
51
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|
Section
7.03.
|
No
Transfer of Servicing.
|
51
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|
Section
7.04.
|
Seller
Not to Resign.
|
52
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Section
7.05.
|
Merger
or Consolidation of the Seller.
|
52
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|
ARTICLE
VIII
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|
SERVICING
TRANSFER
|
||
|
Section
8.01.
|
Mechanics
of Servicing Transfer.
|
52
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|
Section
8.02.
|
Escrows
and Other Amounts Relating to the Mortgage Loans
|
53
|
|
Section
8.03.
|
Reconciliation
of Funds
|
54
|
|
Section
8.04.
|
Transfer
of Books and Records
|
55
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|
Section
8.05.
|
Preparation
of Forms 1098 and 1099
|
55
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ARTICLE
IX
|
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TERMINATION
|
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|
Section
9.01.
|
Termination.
|
55
|
ii
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ARTICLE
X
|
||
|
RECONSTITUTION
OF MORTGAGE LOANS
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|
Section
10.01.
|
Reconstitution
of Mortgage Loans.
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56
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ARTICLE
XI
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MISCELLANEOUS
PROVISIONS
|
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|
Section
11.01.
|
Successor
to the Seller.
|
58
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|
Section
11.02.
|
Amendment.
|
59
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|
Section
11.03.
|
Recordation
of Agreement.
|
59
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|
Section
11.04.
|
Governing
Law.
|
59
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|
Section
11.05.
|
Notices.
|
59
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|
Section
11.06.
|
Severability
of Provisions.
|
60
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|
Section
11.07.
|
Exhibits.
|
61
|
|
Section
11.08.
|
General
Interpretive Principles.
|
61
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|
Section
11.09.
|
Reproduction
of Documents.
|
61
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|
Section
11.10.
|
Confidentiality
of Information.
|
62
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|
Section
11.11.
|
Recordation
of Assignments of Mortgage.
|
62
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Section
11.12.
|
Assignment
by Purchaser.
|
62
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|
Section
11.13.
|
No
Partnership.
|
63
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|
Section
11.14.
|
Execution;
Successors and Assigns.
|
63
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|
Section
11.15.
|
Entire
Agreement.
|
63
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Section
11.16.
|
No
Solicitation.
|
63
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|
Section
11.17.
|
Costs.
|
64
|
|
Section
11.18.
|
Protection
of Mortgagor Personal Information.
|
64
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Section
11.19.
|
Special
Reporting.
|
64
|
EXHIBITS
|
A-1
|
Contents
of Mortgage File
|
|
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A-2
|
Contents
of Servicing File
|
|
|
B
|
Form
of Custodial Letter Agreement
|
|
|
C
|
Form
of Escrow Account Letter Agreement
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|
|
D
|
Form
of Assignment, Assumption and Recognition Agreement
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|
|
E
|
Form
of Assignment and Conveyance
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|
|
F
|
Form
of Indemnification and Contribution Agreement
|
|
|
G
|
Servicing
Transfer Instructions
|
iii
This
is
a
First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of June 1, 2006
and is executed by and between Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser (the “Purchaser”),
and
Wachovia Mortgage Corporation, as seller and interim servicer (in each such
capacity, the “Seller”).
WITNESSETH:
WHEREAS,
the Purchaser and the Seller are parties to that certain Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of February 28, 2005 (the
“Original Purchase Agreement”), the Purchaser has heretofore agreed to purchase
from the Seller and the Seller has heretofore agreed to sell to the Purchaser
certain Mortgage Loans, servicing rights released, from time to time, pursuant
to the terms of letter agreements by and between the Seller and the Purchaser
(each, a “Purchase
Price and Terms Letter”);
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule,
which is annexed to the related Assignment and Conveyance as Exhibit A
thereto. The Mortgage Loans as described herein shall be delivered in groups
of
whole loans (each, a “Mortgage
Loan Package”)
on
various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
the Purchaser and the Seller wish to prescribe the representations and
warranties of the Seller with respect to itself, the Mortgage Loans, the
management, interim servicing and control of the Mortgage Loans by the Seller
during the related Interim Servicing Period pursuant to this Agreement and
Accepted Servicing Practices and the mechanics of the servicing transfer to
the
Purchaser or its designee at the end of the related Interim Servicing Period;
and
WHEREAS,
at the present time, the Purchaser and the Seller desire to amend and restate
the Original Purchase Agreement to make certain modifications as set forth
herein with respect to all Mortgage Loans acquired pursuant to this Agreement
or
the Original Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Seller agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, and which are in accordance with
Xxxxxx Mae servicing practices and procedures for MBS pool mortgages, as defined
in the Xxxxxx Xxx Guides, including future updates.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan as to which the related Mortgage Note provides that the Mortgage
Interest Rate may be adjusted periodically.
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 the Mortgage Loan is
adjusted in accordance with the terms of the Mortgage Note.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A
Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This
First Amendment and Restated Seller’s Purchase, Warranties and Interim Servicing
Agreement, including all exhibits hereto, amendments hereof and supplements
hereto.
Ancillary
Fees:
Any
late payment charges, charges for dishonored checks (NSF fees), pay-off fees,
assumption fees, commissions, and administrative fees on insurance and similar
fees and charges (other than Prepayment Penalties) collected from or assessed
against Mortgagors or otherwise collected in connection with the servicing
of
the Mortgage Loans during the related Interim Servicing Period.
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 a Qualified Appraiser, 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 a Qualified Appraiser.
Assignment
and Conveyance:
As
defined in Section 2.03.
Assignment
of Mortgage:
An
individual assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form and in blank, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to give record
notice of the transfer of the Mortgage.
Balloon
Mortgage Loan:
Any
Mortgage Loan which by its original terms or any modifications thereof provides
for amortization beyond its scheduled maturity date.
2
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a legal holiday in the
States of New York or North Carolina, or (iii) a day on which banks in the
States of New York or North Carolina are authorized or obligated by law or
executive order to be closed.
Closing
Date:
The
date or dates set forth in the related Purchase Price and Terms Letter 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.
Code:
The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Combined
Loan-to-Value Ratio
or
CLTV:
As to
any Second Lien Loan, the ratio, expressed as a percentage, of the (a) sum
of (i) the original outstanding principal balance of the Second Lien Loan
and (ii) the outstanding principal balance of any mortgage loan or mortgage
loans that are senior or equal in priority to the Second Lien Loan and which
are
secured by the same Mortgaged Property as of the origination date at such Second
Lien Loan to (b) the Appraised Value of the related Mortgaged Property as
of the origination of the Second Lien Loan.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, by exercise of the power of eminent
domain or condemnation, to the extent not required to be released to a Mortgagor
in accordance with the terms of the related Mortgage Loan
Documents.
Contact:
The
Person or Persons appointed by the Purchaser for the purposes specified in
Section 4.01.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan purchased pursuant to this Agreement as to which
the related Mortgage Note permits the Mortgagor to convert the Mortgage Interest
Rate on such Mortgage Loan to a fixed Mortgage Interest Rate.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Co-op
Stock:
With
respect to a Co-op Loan, the single outstanding class of stock, partnership
interest or other ownership instrument in the related residential cooperative
housing corporation.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of the
Standard & Poor’s Glossary.
3
Credit
Score:
The
credit score for each Mortgage Loan shall be the minimum of two credit bureau
scores obtained at origination or such other time by the Seller. If two credit
bureau scores are obtained, the Credit Score will be the lower score. If three
credit bureau scores are obtained, the Credit Score will be the middle of the
three. When there is more than one applicant, the lowest of the applicants’
Credit Scores will be used. There is only one (1) score for any loan
regardless of the number of borrowers and/or applicants.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to
Section 4.03 which shall be entitled “Wachovia Mortgage Corporation, in
trust for the Purchaser, as owner of various whole loan series” and shall be
established as an Eligible Account, in the name of the Person that is the
“Purchaser” with respect to the related Mortgage Loans.
Cut-off
Date:
With
respect to each Mortgage Loan Package, the first Business Day of the month
of
the related Closing Date, or as otherwise set forth in the related Purchase
Price and Terms Letter.
Determination
Date:
With
respect to each Remittance Date, the 15th day (or if such 15th day is
not a Business Day, the Business Day immediately preceding such 15th day)
of the month in which such Remittance Date occurs.
Due
Date:
With
respect to any Mortgage Loan, the first day of each month, exclusive of
any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the first day
of
the month of the Remittance Date, in both cases, inclusive.
Eligible
Account:
An
account established and maintained: (a) within FDIC insured accounts (or
other accounts with comparable insurance coverage acceptable to the Rating
Agencies) created, maintained and monitored by the Seller so that all funds
deposited therein are fully insured, (b) with the corporate trust
department of a financial institution assigned a long-term debt rating of not
less than “A-1” by Standard & Poor’s or “Prime-1” by Xxxxx’x Investors
Services, Inc. and, if ownership of the Mortgage Loans is evidenced by mortgaged
backed securities, the equivalent ratings of the rating agencies, and held
such
that the rights of the Purchaser and the owner of the Mortgage Loans shall
be
fully protected against the claims of any creditors of the Seller and of any
creditors or depositors of the institution in which such account is maintained
or (c) in a separate non-trust account without FDIC or other insurance in
an Eligible Institution. In the event that a Custodial Account is established
pursuant to clause (b) or (c) of the preceding sentence, the Seller shall
provide the Purchaser with written notice on the Business Day following the
date
on which the applicable institution fails to meet the applicable ratings
requirements.
Eligible
Institution:
An
institution having (i) the highest short-term debt rating, and one of the
two highest long-term debt ratings of the Rating Agency; or (ii) with
respect to any Custodial Account, an unsecured long-term debt rating of at
least
one of the two highest unsecured long-term debt ratings of the Rating
Agencies.
4
Eligible
Investments:
Any one
or more of the following obligations or securities:
(a) direct
obligations of, and obligations fully guaranteed by the United States of America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
(b) (i)
demand
or time deposits, federal funds or bankers’ acceptances issued by any depository
institution or trust company incorporated under the laws of the United States
of
America or any state thereof and subject to supervision and examination by
federal and/or state banking authorities, provided that the commercial paper
and/or the short-term deposit rating and/or the long-term unsecured debt
obligations or deposits of such depository institution or trust company at
the
time of such investment or contractual commitment providing for such investment
are rated in one of the two highest rating categories by each Rating Agency
and
(ii) any other demand or time deposit or certificate of deposit that is
fully insured by the FDIC;
(c) repurchase
obligations with a term not to exceed thirty (30) days and with respect to
(i) any security described in clause (a) above and entered into with a
depository institution or trust company (acting as principal) described in
clause (b)(ii) above;
(d) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that are
rated in one of the two highest rating categories by each Rating Agency at
the
time of such investment or contractual commitment providing for such investment;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investments therein will cause the then outstanding principal
amount of securities issued by such corporation and held as Eligible Investments
to exceed 10% of the aggregate outstanding principal balances of all of the
Mortgage Loans and Eligible Investments;
(e) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than one year after the date of issuance thereof) which are rated in one of
the
two highest rating categories by each Rating Agency at the time of such
investment;
(f) any
other
demand, money market or time deposit, obligation, security or investment as
may
be acceptable to each Rating Agency as evidenced in writing by each Rating
Agency; and
(g) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (a)) and other securities and which
money market funds are rated in one of the two highest rating categories by
each
Rating Agency.
5
provided,
however,
that no
instrument or security shall be an Eligible Investment if such instrument or
security evidences a right to receive only interest payments with respect to
the
obligations underlying such instrument or if such security provides for payment
of both principal and interest with a yield to maturity in excess of 120% of
the
yield to maturity at par or if such investment or security is purchased at
a
price greater than par.
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to
Section 4.05 which shall be entitled “Wachovia Mortgage Corporation, in
trust for the Purchaser, as owner of various whole loan series and various
Mortgagors” and shall be established as an Eligible Account, in the name of the
Person that is the “Purchaser” with respect to the related Mortgage
Loans.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
Xxxxxx
Mae:
The
entity formerly known as the Federal National Mortgage Association, or any
successor thereto.
Xxxxxx
Xxx Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx Servicers’ Guide and all amendments
or additions thereto, including, but not limited to, future updates
thereof.
Xxxxxx
Mae Transfer:
As
defined in Section 10.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to
Section 4.11.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
First
Lien
Loan:
A
Mortgage Loan secured by a first lien Mortgage on the related Mortgaged
Property.
First
Remittance Date:
The
eighteenth (18th) day of the month following each respective Closing Date,
or if
such day is not a Business Day, the first Business Day immediately
thereafter.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement which bears a fixed Mortgage
Interest Rate during the life of the loan.
Xxxxxxx
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation, or any
successor thereto.
6
Xxxxxxx
Mac Guides:
The
Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac Servicers’ Guide and all
amendments or additions thereto, including, but not limited to, any future
updates thereof.
Xxxxxxx
Mac Transfer:
As
defined in Section 10.01.
GAAP:
Generally accepted accounting principles, consistently applied.
Goodbye
Letter:
With
respect to each Mortgage Loan, the notification to the related Mortgagor of
the
impending transfer of servicing with respect to such Mortgage Loan, as described
in the Servicing Transfer Instructions.
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.
High
Cost Loan:
A
Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of 1994 (“HOEPA”),
(b) classified as a “high cost home,” “threshold,” “covered,” “high risk
home,” “predatory” or similar loan under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees),
(c)
with
an “annual percentage rate” or total “points and fees” payable by the related
Mortgagor (as each such term is calculated under HOEPA) that exceed the
thresholds set forth by HOEPA and its implementing regulations, including 12
C.F.R. § 226.32(a)(1)(i) or (d) categorized
as High Cost pursuant to Appendix E of Standard & Poor’s Glossary. For
avoidance of doubt, the parties agree that this definition shall apply to any
law regardless of whether such law is presently, or in the future becomes,
the
subject of judicial review or litigation.
Home
Loan:
A
Mortgage Loan categorized as a Home Loan pursuant to Appendix E of the
Standard & Poor’s Glossary.
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 Mortgage Interest Rate thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Insurer
Letter:
With
respect to any Mortgage Loan, the notification to each insurer under each
insurance policy related to such Mortgage Loan of the impending transfer of
servicing with respect to such Mortgage Loan, as described in the Servicing
Transfer Instructions.
7
Interest
Only Mortgage Loan:
A
Mortgage Loan that only requires payments of interest for a period of time
specified in the related Mortgage Note.
Interim
Servicing Fee:
As to
each Mortgage Loan Package, the amount of the fee the Purchaser shall pay to
the
Seller for servicing the Mortgage Loans in accordance with the terms of this
Agreement, which shall, with respect to each Mortgage Loan, be equal to $6.00
per calendar month.
Interim
Servicing Period:
With
respect to each Mortgage Loan Package, the period beginning on the related
Closing Date and ending on the related Servicing Transfer Date, during which
xxxx Xxxxxx shall service the related Mortgage Loans on behalf of the
Purchaser.
Liquidation
Proceeds:
Amounts
received in connection with the partial or complete liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee’s sale, foreclosure sale or otherwise, or in connection with the sale of
the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of
the Mortgage.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
original outstanding principal amount of the Mortgage Loan to the Appraised
Value of the Mortgaged Property at origination.
Manufactured
Home Mortgage Loan:
A
single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by HUD (“HUD Code”), as amended in 2000, which
preempts state and local building codes. Each unit is identified by the presence
of a HUD Plate/Compliance Certificate label. The sections are then transported
to the site and joined together and affixed to a pre-built permanent foundation
(which satisfies the manufacturer’s requirements and all state, county, and
local building codes and regulations). The manufactured home is built on a
non-removable, permanent frame chassis that supports the complete unit of walls,
floors, and roof. The underneath part of the home may have running gear (wheels,
axles, and brakes) that enable it to be transported to the permanent site.
The
wheels and hitch are removed prior to anchoring the unit to the permanent
foundation. The manufactured home must be classified as real estate and taxed
accordingly. The permanent foundation may be on land owned by the mortgager
or
may be on leased land.
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.
8
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 mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Mortgage:
With
respect to any Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note which creates a first or
second lien on an unsubordinated estate in fee simple in real property securing
the Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien upon
a
leasehold estate of the Mortgagor. With respect to a Co-op Loan, the related
Security Agreement.
Mortgage
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified in
Exhibit A-1
and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
Mortgage
Interest Rate:
As to
each Mortgage Loan, the annual rate at which interest accrues on such Mortgage
Loan in accordance with the provisions of the related Mortgage
Note.
Mortgage
Interest Rate Cap:
With
respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage Interest
Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, any escrow accounts related
to the Mortgage Loan, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents contained in a Mortgage File.
Mortgage
Loan Package:
As
defined in the Recitals to this Agreement.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth the following information with respect
to each Mortgage Loan in the related Mortgage Loan Package: (1) the
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s name;
(3) the street address of the Mortgaged Property including the city, state
and zip code; (4) a code indicating whether the Mortgagor is self-employed;
(5) a code indicating whether the Mortgaged Property is owner-occupied;
(6) the number of units and type of residential property constituting the
Mortgaged Property; (7) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in
the
same manner but based on the actual amortization schedule; (8) with respect
to each First Lien Loan, the LTV at origination, and with respect to each Second
Lien Loan, the CLTV at origination; (9) the Mortgage Interest Rate as of
the related Cut-off Date; (10) the date on which the Monthly Payment was
due on the Mortgage Loan and, if such date is not consistent with the Due Date
currently in effect, such Due Date; (11) the stated maturity date;
(12) the first payment date; (13) the amount of the Monthly Payment as
of the related Cut-off Date; (14) the last payment date on which a payment
was actually applied to the outstanding principal balance; (15) the
original principal amount of the Mortgage Loan; (16) the principal balance
of the Mortgage Loan as of the close of business on the related Cut-off Date,
after deduction of payments of principal due and collected on or before the
related Cut-off Date; (17) with respect to each Adjustable Rate Mortgage
Loan, the Adjustment Date; (18) with respect to each Adjustable Rate
Mortgage Loan, the Gross Margin; (19) with respect to each Adjustable Rate
Mortgage Loan, the Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) with respect to each Mortgage Loan, a code indicating the type of
Index; (21) the type of Mortgage Loan (i.e., Fixed or Adjustable Rate Mortgage
Loan, First or Second Lien Loan); (20) a code indicating the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(21) a code indicating the documentation style (i.e., full, alternative or
reduced); (22) asset verification (Y/N); (23) the loan credit
classification (as described in the Underwriting Standards); (24) whether
such Mortgage Loan provides for a Prepayment Penalty and, if applicable,
the
Prepayment Penalty term;
(25) the Mortgage Interest Rate as of origination; (26) the credit
risk score (FICO score); (27) the date of origination; (28) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate
adjustment period; (29) with respect to each Adjustable Rate Mortgage Loan,
the Mortgage Interest Rate adjustment percentage; (30) with respect to each
Adjustable Rate Mortgage Loan, the Mortgage Interest Rate Cap as of the first
Adjustment Date; (31) with respect to each Adjustable Rate Mortgage Loan,
the Periodic Rate Cap subsequent to the first Adjustment Date; (32) the Due
Date for the first Monthly Payment; (33) the original Monthly Payment due;
(34) a code indicating the Primary Mortgage Insurance Policy provider and
percentage of coverage, if applicable; (35) Appraised Value;
(36) appraisal type; (37) appraisal date; (40) a code indicating
whether the Mortgage Loans is a “buydown”
loan;
and (38) with respect to the related Mortgagor, the debt-to-income ratio.
With respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set forth the following information, as of the related Cut-off Date:
(1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; (4) the weighted
average maturity of the Mortgage Loans; (5) the applicable Cut-off Date;
and (6) the applicable Closing Date.
9
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to any Mortgage Loan that is not a Co-op Loan, the underlying real
property securing repayment of the related Mortgage Note, consisting of a fee
simple parcel of real estate or a leasehold estate, the term of which is equal
to or longer than the term of such Mortgage Note. With respect to a Co-op Loan,
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagor:
The
obligor on a Mortgage Note.
Mortgagor
Personal Information:
Any
information, including, but not limited to, all personal information about
a
Mortgagor that is disclosed to the Seller or the Purchaser by or on behalf
of
the Mortgagor.
Net
P&I Transfer Amount:
As
defined in Section 8.02.
Net
T&I Transfer Amount:
As
defined in Section 8.02.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Senior Vice President or a Vice President and by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Seller, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the Purchaser,
provided that any Opinion of Counsel relating to (a) qualification of the
Mortgage Loans in a REMIC or (b) compliance with the REMIC Provisions, must
be (unless otherwise stated in such Opinion of Counsel) an opinion of counsel
who (i) is in fact independent of the Seller and any servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Seller or any servicer or in an Affiliate of either
and (iii) is not connected with the Seller or any servicer as an officer,
employee, director or person performing similar functions.
OTS:
Office
of Thrift Supervision or any successor thereto.
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 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,
which may be a different amount with respect to the first Adjustment
Date.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
10
Premium
Percentage:
With
respect to any Mortgage Loan, a percentage equal to the excess of the Purchase
Price Percentage over 100%.
Prepayment
Penalty:
With
respect to each Mortgage Loan, the amount of any premium or penalty required
to
be paid by the Mortgagor if the Mortgagor prepays such Mortgage Loan as provided
in the related Mortgage Note or Mortgage.
Primary
Mortgage Insurance Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant to
Section 3.02(bb), or any replacement policy therefor obtained by the Seller
pursuant to Section 4.07.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in The
Wall Street Journal
(Northeast Edition).
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan which
is received in advance of its scheduled Due Date, including any Prepayment
Penalty thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price:
As
defined in Section 2.02.
Purchase
Price and Terms Letter:
As
defined in the Recitals to this Agreement which may also be a form of trade
execution notice.
Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc., its successors in interest and
assigns.
Qualified
Appraiser:
With
respect to each Mortgage Loan, an appraiser, duly appointed by the Seller,
who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Xxxxxx Mae
and
Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, approved as an insurer by Xxxxxx
Xxx or Xxxxxxx Mac.
Rating
Agencies:
Standard & Poor’s Ratings Services, a division of The XxXxxx- Xxxx
Companies, Inc., Xxxxx’x Investors Service, Inc. or, in the event that some or
all ownership of the Mortgage Loans is evidenced by mortgage-backed securities,
the nationally recognized rating agencies issuing ratings with respect to such
securities, if any.
Reconstitution:
As
defined in Section 10.01.
11
Reconstitution
Agreement:
As
defined in Section 10.01.
Reconstitution
Date:
As
defined in Section 10.01.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which were
used in whole or part to satisfy an existing mortgage.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
Remittance
Date:
The
18th day of each month, beginning with the First Remittance Date, or if
such day is not a Business Day, the first Business Day thereafter.
Repurchase
Price:
With
respect to any Mortgage Loan for which a breach of a representation or warranty
set forth in this Agreement is found, a price equal to (i) the then
outstanding principal balance of the Mortgage Loan to be repurchased,
plus
(ii) accrued interest thereon at the Mortgage Interest Rate from the date
to which interest had last been paid through the date of such repurchase,
plus
(iii) the amount of any outstanding advances owed to any servicer,
plus
(iv) all costs and expenses incurred by the Purchaser or any servicer
arising out of or based upon such breach, including without limitation
reasonable costs and expenses incurred in the enforcement of the Seller’s
repurchase obligation hereunder, less
(v) in the event the Seller is servicing such Mortgage Loan as of the date
of repurchase, amounts received or advanced in respect of such repurchased
Mortgage Loan which are being held in the Custodial Account for distribution
in
connection with such Mortgage Loan, plus
(vi) in the event a Mortgage Loan is repurchased during the period
following the related Closing Date and prior to a related Reconstitution Date
(but in no event shall such period extend for more than the first twelve months
following the related Closing Date), an amount equal to the Premium Percentage
multiplied by the outstanding principal balance of such Mortgage Loan as of
the
date of such repurchase.
RESPA:
Real
Estate Settlement Procedures Act, as amended from time to time.
Second
Lien
Loan:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
Securitization
Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a trust or other entity
as part of a publicly-offered or privately-placed, rated or unrated mortgage
pass-through or other mortgage-backed securities transaction.
Security
Agreement:
With
respect to a Co-op Loan, the agreement or mortgage creating a security interest
in favor of the originator of the Co-op Loan in the related Co-op
Stock.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its interim servicing obligations, including,
but
not limited to, the cost of (a) the preservation, restoration and
protection of a Mortgaged Property, (b) any enforcement, administrative or
judicial proceedings, or any legal work or advice specifically related to
servicing the Mortgage Loans, including but not limited to, foreclosures,
bankruptcies, condemnations, drug seizures, elections, foreclosures by
subordinate or superior lienholders, and other legal actions incidental to
the
servicing of the Mortgage Loans (provided that such expenses are reasonable
and
that the Seller specifies the Mortgage Loan(s) to which such expenses relate,
and provided further that any such enforcement, administrative or judicial
proceeding does not arise out of a breach of any representation, warranty or
covenant of the Seller hereunder), (c) taxes, assessments, water rates, sewer
rates and other charges which are or may become a lien upon the Mortgaged
Property, and Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage, (d) any expenses reasonably sustained by the Seller
with respect to the liquidation of the Mortgaged Property in accordance with
the
terms of this Agreement and (e) compliance with the obligations under
Section 4.01
12
Servicing
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified in
Exhibit A-2
and
copies of all documents for such Mortgage Loan specified in Exhibit A-1.
Servicing
Officer:
Any
officer of the Seller involved in, or responsible for, the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Seller to the Purchaser upon request, as such list
may
from time to time be amended.
Servicing
Transfer Date:
With
respect to each Mortgage Loan Package, the date upon which the Seller’s
obligations to service the related Mortgage Loans shall cease. Such date shall
occur on the date provided in the related Purchase Price and Terms Letter and
confirmed in the related Assignment and Conveyance.
Servicing
Transfer Instructions:
The
Seller’s transfer instructions for servicing as described in Exhibit G.
Standard &
Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies Inc., and its successors in interest.
Standard &
Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Stated
Principal Balance:
As to
each Mortgage Loan and any date of determination, (i) the principal balance
of such Mortgage Loan as of the related Cut-off Date after giving effect to
payments of principal actually received by the Seller on or before such date,
minus (ii) all amounts previously distributed to the Purchaser with respect
to the Mortgage Loan representing payments or recoveries of
principal.
Underwriting
Standards:
As to
each Mortgage Loan, the Seller’s underwriting guidelines in effect as of the
date of origination of such Mortgage Loan.
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 Transfer, Xxxxxx
Xxx
Transfer or a Xxxxxxx Mac Transfer.
13
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
Section
2.01. Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase on each Closing
Date,
pursuant to this Agreement and the related Purchase Price and Terms Letter,
the
Mortgage Loans being sold by the Seller and listed on the related Mortgage
Loan
Schedule, servicing rights released, having an aggregate Stated Principal
Balance in an amount as set forth in the related Purchase Price and Terms
Letter, 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 such Closing Date. Notwithstanding the foregoing,
the parties understand and agree that the rights and responsibilities related
to
the servicing of the Mortgage Loans shall remain vested in the Seller through
the related Servicing Transfer Date. The Seller shall deliver in an electronic
format the Mortgage Loan Schedule for the Mortgage Loans to be purchased on
such
Closing Date to the Purchaser at least two (2) Business Days prior to such
Closing Date.
Section
2.02. Purchase
Price.
The
Purchase Price for the Mortgage Loans in a Mortgage Loan Package shall be equal
to the sum of (a) the percentage of par as stated in the related Purchase
Price and Terms Letter (subject to adjustment as provided therein), multiplied
by the aggregate Stated Principal Balance of Mortgage Loans as of the related
Cut-off Date listed on the related Mortgage Loan Schedule plus
(b) accrued interest on the aggregate Stated Principal Balance of the
related Mortgage Loans at the weighted average Mortgage Interest Rate of such
Mortgage Loans from and including the date interest was last received through
and including the day before such Closing Date (the “Purchase
Price”).
If so
provided in the related Purchase Price and Terms Letter, portions of each
Mortgage Loan Package shall be priced separately.
The
Purchase Price as set forth in the preceding paragraph for the Mortgage Loans
in
a Mortgage Loan Package shall be paid on the related Closing Date by wire
transfer of immediately available funds.
With
respect to each Mortgage Loan, the Purchaser shall be entitled to (1) all
payments and/or recoveries of principal collected after the related Cut-off
Date, and (2) all payments of interest on such Mortgage Loan collected
after the Cut-off Date, net of the related Interim Servicing Fee.
For
the
purposes of this Agreement, if received prior to the related Cut-off Date,
payments of scheduled principal and interest prepaid for a Due Date beyond
the
related Closing Date shall be applied to reduce the Stated Principal Balance
of
the related Mortgage Loan as of such Closing Date. Such prepaid amounts shall
be
the property of the Seller.
Section
2.03. Servicing
of Mortgage Loans.
14
On
each
Closing Date, the Mortgage Loans in the related Mortgage Loan Package will
be
sold by the Seller to the Purchaser on a servicing released basis upon the
execution and delivery of an Assignment and Conveyance in the form attached
hereto as Exhibit E
(the
“Assignment
and Conveyance”).
Simultaneously
with the execution and delivery of the related Assignment and Conveyance, for
each Mortgage Loan Package, the Seller hereby agrees to interim service the
Mortgage Loans listed on the Mortgage Loan Schedule in accordance with Accepted
Servicing Practices and this Agreement. The rights of the Purchaser to receive
payments with respect to the related Mortgage Loans shall be as set forth in
this Agreement.
The
Seller shall transfer servicing of each Mortgage Loan to the Purchaser on the
related Servicing Transfer Date, in compliance with Section 8.01 hereof.
Any rights with respect to the servicing of the Mortgage Loans hereunder shall
be assigned to the Purchaser and the Purchaser assumes any obligations
thereunder with respect to the Mortgage Loans, except as otherwise provided
in
this Agreement.
Section
2.04. Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
As
of
each Closing Date, the Seller will have sold, transferred, assigned, set over
and conveyed to the Purchaser, without recourse, and the Seller hereby
acknowledges that the Purchaser will have, all the right, title and interest
of
the Seller in and to the Mortgage Loans. In accordance with Section 2.06,
the Seller shall deliver at its own expense, the Mortgage Files for the related
Mortgage Loans to Purchaser or its designee. The possession of each Servicing
File by the Seller is for the sole purpose of servicing the related Mortgage
Loan during the related Interim Servicing Period. From each Closing Date, the
ownership of each related Mortgage Loan, including the Mortgage Note, the
Mortgage, the contents of the related Mortgage File and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith, has
been
vested in the Purchaser. All rights arising out of the Mortgage Loans including,
but not limited to, all funds received on or in connection with the Mortgage
Loans and all records or documents with respect to the Mortgage Loans prepared
by or which come into the possession of the Seller shall be received and held
by
the Seller in trust for the benefit of the Purchaser as the owner of the
Mortgage Loans. Any portion of the Mortgage Files retained by the Seller during
the Interim Servicing Period shall be appropriately identified in the Seller’s
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser in accordance with this Agreement by including (or deleting, in the
case of Mortgage Loans which are repurchased in accordance with this Agreement)
in such computer files the information required by the MERS® System to identify
the Purchaser of such Mortgage Loans. The Seller further agrees that it will
not
alter the information referenced in this paragraph with respect to any Mortgage
Loan during the related Interim Servicing Period unless otherwise directed
by
the Purchaser.
Section
2.05. Books
and Records.
15
The
sale
of each Mortgage Loan will be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller and will be reflected
on
the Purchaser’s balance sheet and other financial statements as a purchase by
the Purchaser. The Seller shall maintain, a complete set of books and records
for the Mortgage Loans sold by it which shall be appropriately identified in
the
Seller’s computer system to clearly reflect the ownership of the Mortgage Loans
by the Purchaser. In particular, the Seller shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of Xxxxxx Xxx or Xxxxxxx
Mac, as applicable, including but not limited to documentation as to the method
used in determining the applicability of the provisions of the Flood Disaster
Protection Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium project for
approval by Seller and periodic inspection reports as required by
Section 4.09. To the extent that original documents are not required for
purposes of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Seller may be in the form of microfilm or microfiche or such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as the Seller complies with the
requirements of the Xxxxxx Mae Guides.
Section
2.06. Transfer
of Mortgage Loans.
The
Seller shall keep at its office books and records in which, subject to such
reasonable regulations as it may prescribe, the Seller shall note transfers
of
Mortgage Loans. No transfer of a Mortgage Loan may be made unless such transfer
is in compliance with the terms of Section 11.12. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any Person
with
respect to this Agreement or any Mortgage Loan unless a properly executed
Assignment, Assumption and Recognition Agreement in the form of Exhibit D
with
respect to such Mortgage Loan has been delivered to the Seller; provided, that,
unless otherwise provided in the related Purchase Price and Terms Letter, in
no
event shall there be more than four (4) “Purchasers” with respect to any
Mortgage Loan Package. Upon receipt of notice of the transfer, the Seller shall
xxxx its books and records to reflect the ownership of the Mortgage Loans by
such assignee, and, except as otherwise provided herein, the previous Purchaser
shall be released from its obligations hereunder with respect to the Mortgage
Loans sold or transferred.
Section
2.07. Delivery
of Mortgage Loan Documents.
The
Seller shall, at least two (2) Business Days prior to the related Closing
Date (or such later date as the Purchaser may reasonably request), deliver
and
release to the Purchaser, or its designee, the Mortgage Loan Documents with
respect to each Mortgage Loan pursuant to a bailee letter agreement. If the
Seller cannot deliver the original recorded Mortgage Loan Documents on the
related Closing Date, the Seller shall, promptly upon receipt thereof and in
any
case not later than 180 days from the related Closing Date, deliver such
original recorded documents to the Purchaser or its designee (unless the Seller
is delayed in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office). If delivery
is not completed within 180 days of the related Closing Date solely because
such documents shall not have been returned by the appropriate recording office,
the Seller shall deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer’s certificate of a Servicing
Officer of the Seller, confirming that such document has been accepted for
recording and shall use its best efforts to deliver such document within twelve
(12) months of the related Closing Date.
16
To
the
extent received by it, 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 (2) weeks after their execution; provided,
however, that the Seller shall provide the Purchaser, or its designee, with
a
copy, certified by the Seller as a true copy, of any such document submitted
for
recordation within two (2) weeks after its execution, and shall promptly
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 two (2) weeks of its return from the
appropriate public recording office.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall be
responsible for recording the Assignments of Mortgage and shall be reimbursed
by
the Seller for the costs associated therewith pursuant to the preceding
sentence.
Section
2.08. Quality
Control Procedures.
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program must
be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is to ensure that the Mortgage Loans
are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
Section
2.09. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
related Closing Date. The closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree, or conducted in person, at such
place
as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
(a) at
least
two (2) Business Days prior to the related Closing Date, the Seller shall
deliver to the Purchaser a magnetic diskette, or transmit by modem or e-mail,
a
listing on a loan-level basis of the information contained in the Mortgage
Loan
Schedule;
(b) all
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date or, with respect to
representations and warranties made as of a date other than the related Closing
Date, as of such date, and no event shall have occurred which, with notice
or
the passage of time, would constitute a default under this
Agreement;
17
(c) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the terms hereof;
(d) the
Seller shall have received, or the Seller’s attorneys shall have received in
escrow, all closing documents, in such forms as are agreed upon and acceptable
to the Seller, duly executed by all signatories other than the Seller as
required pursuant to the terms hereof;
(e) the
Seller shall have delivered and released to the Purchaser (or its designee)
on
or prior to the related Closing Date all documents required to be delivered
and
released pursuant to the terms of this Agreement; and
(f) all
other
terms and conditions of this Agreement, the related Purchase Price and Terms
Letter and the related Assignment and Conveyance shall have been materially
complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER;
REPURCHASE;
REVIEW OF MORTGAGE LOANS
Section
3.01. Representations
and Warranties of the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry out its business as now being conducted, and is licensed
and
qualified to transact business in and is in good standing under the laws of
each
state in which any Mortgaged Property is located or is otherwise exempt under
applicable law from such licensing or qualification or is otherwise not required
under applicable law to effect such licensing or qualification and no demand
for
such licensing or qualification has been made upon the Seller by any such state,
and in any event the Seller is in compliance with the laws of any such state
to
the extent necessary to ensure the enforceability of each Mortgage Loan and
the
servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement, the related Purchase Price and Terms Letter and the related
Assignment and Conveyance and to conduct its business as presently conducted;
the Seller has duly authorized the execution, delivery and performance of this
Agreement and any agreements contemplated hereby, has duly executed and
delivered this Agreement, the related Purchase Price and Terms Letter and the
related Assignment and Conveyance, and any agreements contemplated hereby,
and
this Agreement, the related Purchase Price and Terms Letter, the related
Assignment and Conveyance and each Assignment of Mortgage to the Purchaser
and
any agreements contemplated hereby, constitute the legal, valid and binding
obligations of the Seller, enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors; and all
requisite corporate action has been taken by the Seller to make this Agreement,
the related Purchase Price and Terms Letter, the related Assignment and
Conveyance and all agreements contemplated hereby valid and binding upon the
Seller in accordance with their respective terms;
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(c) None
of
the execution and delivery of this Agreement, the related Purchase Price and
Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage
Loans to the Purchaser, the consummation of the transactions contemplated
hereby, or the fulfillment of or compliance with the terms and conditions of
this Agreement, the related Purchase Price and Terms Letter or the related
Assignment and Conveyance will conflict with any of the terms, conditions or
provisions of the Seller’s charter or by-laws or materially conflict with or
result in a material breach of any of the terms, conditions or provisions of
any
legal restriction or any material agreement or instrument to which the Seller
is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the material violation
of
any law, rule, regulation, order, judgment or decree to which the Seller or
its
property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage Loans,
the
execution, delivery, performance or enforceability of this Agreement, the
related Purchase Price and Terms Letter or the related Assignment and
Conveyance, or which is reasonably likely to have a material adverse effect
on
the financial condition of the Seller;
(e) 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, the related Purchase Price and
Terms Letter and the related Assignment and Conveyance, except for consents,
approvals, authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement, the related
Purchase Price and Terms Letter and the related Assignment and Conveyance 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, the related Purchase Price and Terms Letter and the related
Assignment and Conveyance are not subject to bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
19
(g) The
Seller has not used selection procedures that identified the Mortgage Loans
as
being less desirable or valuable than other comparable mortgage loans in the
Seller’s portfolio at the Cut-off Date;
(h) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(i) The
Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx
Xxx or Xxxxxxx Mac and HUD, with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. The Seller is duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations, meets the minimum capital
requirements, if applicable, set forth by the OCC, and is in good standing
to
sell mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx
Mac
and no event has occurred which would make the Seller unable to comply with
eligibility requirements or which would require notification to either Xxxxxx
Mae or Xxxxxxx Mac;
(j) The
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement and the
related Purchase Price and Terms Letter. The Seller is solvent and the sale
of
the Mortgage Loans will not cause the Seller to become insolvent. The sale
of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of the Seller’s creditors;
(k) Neither
this Agreement nor any information, statement, tape, diskette, form, report,
or
other document furnished or to be furnished pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transfer or Whole Loan Transfer) contains
or will contain any untrue statement of fact or omits or will omit to state
a
fact necessary to make the statements contained herein or therein not
misleading;
(l) The
Seller acknowledges and agrees that the Interim Servicing Fee represents
reasonable compensation for performing such services and that the entire Interim
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the interim servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(m) The
Seller has delivered to the Purchaser financial statements as to its last two
complete fiscal years for which financial statements are available. All such
financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries
and
have been prepared in accordance with GAAP consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has been
no
change in the business, operations, financial condition, properties or assets
of
the Seller since the date of the Seller’s financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement, the related Purchase Price and Terms Letter or the related Assignment
and Conveyance;
20
(n) The
Seller has not dealt with any broker, investment banker, agent or other Person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans; and
(o) The
Seller 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.
Section
3.02. Representations
and Warranties as to Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
(a) The
information set forth in the Mortgage Loan Schedule, including any diskette
or
other related data tapes delivered to the Purchaser, is complete, true and
correct in all material respects as of the related Cut-off Date;
(b) With
respect to a First Lien Loan that is not a Co-op Loan, the Mortgage creates
a
first lien or a first priority ownership interest in an estate in fee simple
in
real property securing the related Mortgage Note. With respect to a First Lien
Loan that is a Co-op Loan, the Mortgage creates a first lien or a first priority
ownership interest in the stock ownership and leasehold rights associated with
the cooperative unit securing the related Mortgage Note;
(c) With
respect to a Second Lien Loan that is not a Co-op Loan, the Mortgage creates
a
second lien or a second priority ownership interest in an estate in fee simple
in real property securing the related Mortgage Note. With respect to a Second
Lien Loan that is a Co-op Loan, the Mortgage creates a second lien or a second
priority ownership interest in the stock ownership and leasehold rights
associated with the cooperative unit securing the related Mortgage
Note;
(d) All
payments due on or prior to the related Cut-off Date for such Mortgage Loan
have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
thirty (30) days or more in payment and has not been dishonored; there are
no material defaults under the terms of the Mortgage Loan; the Seller has not
advanced funds, or induced, solicited or knowingly received any advance of
funds
from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by
the
Mortgage Loan; as to each Mortgage Loan, there has been no more than one thirty
(30) day delinquency during the immediately preceding twelve-month
period;
21
(e) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(f) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
to the extent any such recordation is required by law, or, necessary to protect
the interest of the Purchaser. No instrument of waiver, alteration or
modification has been executed in connection with such Mortgage Loan, and no
Mortgagor has been released, in whole or in part, from the terms thereof except
in connection with an assumption agreement and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule; the substance of any such waiver, alteration or modification
has
been approved by the issuer of any related Primary Mortgage Insurance Policy
and
title insurance policy, to the extent required by the related
policies;
(g) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(h) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by Xxxxxxx Mac, as well as all additional
requirements set forth in Section 4.09 of this Agreement. All such standard
hazard policies are in full force and effect and on the date of origination
contained a standard mortgagee clause naming the Seller and its successors
in
interest and assigns as loss payee and such clause is still in effect and all
premiums due thereon have been paid. If required by the Flood Disaster
Protection Act of 1973, as amended, the Mortgage Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration which policy conforms to Xxxxxx Xxx and Xxxxxxx
Mac requirements, as well as all additional requirements set forth in
Section 4.09 of this Agreement. Such policy was issued by an insurer
acceptable under Xxxxxx Mae or Xxxxxxx Mac guidelines. The Mortgage obligates
the Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost
and expense, and upon the Mortgagor’s failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor’s cost and expense and
to seek reimbursement therefor from the Mortgagor. Where required by state
law
or regulation, the Mortgagor has been given an opportunity to choose the carrier
of the required hazard insurance, provided the policy is not a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance policy
is the valid and binding obligation of the insurer, is in full force and effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
Person or entity, and no such unlawful items have been received, retained or
realized by the Seller;
22
(i) 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, disclosure, predatory, fair lending
or abusive lending laws applicable to the Mortgage Loan have been complied
with,
the consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the Seller shall maintain in
its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such
requirements;
(j) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(k) With
respect to any First Lien Loan, the related Mortgage is a valid, subsisting,
enforceable and perfected first lien on the Mortgaged Property and, with respect
to any Second Lien Loan, the related Mortgage is a valid, subsisting,
enforceable and perfected second lien on the Mortgaged Property, including
for
Mortgage Loans that are not Co-op Loans, all buildings on the Mortgaged Property
and all installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first or second lien, as applicable,
of
the Mortgage subject only to (1) with respect to any Second Lien Loan, the
related First Lien Loan, (2) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (3) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not adversely affect the appraised value of the
Mortgaged Property as set forth in such appraisal, and (4) other matters to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage or
the
use, enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates
(1) with respect to any First Lien Loan, a valid, subsisting, enforceable
and perfected first lien and first priority security interest and (2) with
respect to any Second Lien Loan, a valid, subsisting, enforceable and perfected
second lien and second priority security interest, in each case, on the property
described therein, and the Seller has the full right to sell and assign the
same
to the Purchaser;
23
(l) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights of creditors generally and the equitable remedy
of specific performance and by general equitable principles. All parties to
the
Mortgage Note and the related Mortgage had the legal capacity to enter into
the
Mortgage Loan and to execute and deliver the Mortgage Note and the related
Mortgage. The Mortgage Note and the related Mortgage have been duly and properly
executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of Seller, the Mortgagor or any other party involved in the
origination of the Mortgage Loan. The proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage Note
or
related Mortgage;
(m) The
Seller or its Affiliate (or with respect to MERS Mortgage Loans, MERS on behalf
of the Seller or its Affiliate) is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note, and upon
recordation the Purchaser or its designee will be the owner of record of the
Mortgage and the indebtedness evidenced by the Mortgage Note, and upon the
sale
of the Mortgage Loan to the Purchaser, the Seller will retain the Servicing
File
in trust for the Purchaser only for the purpose of servicing and supervising
the
servicing of the Mortgage Loans during the related Interim Servicing Period.
Immediately prior to the transfer and assignment to the Purchaser on the related
Closing Date, the Mortgage Loan, including the Mortgage Note and the Mortgage,
were not subject to an assignment or pledge, and the Seller had good and
marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest and has
the full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign the Mortgage Loan pursuant
to this Agreement and following the sale of the Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan, except for the purposes of servicing the Mortgage Loan as set
forth in this Agreement. After the related Closing Date, the Seller will have
no
right to modify or alter the terms of the sale of the Mortgage Loan and the
Seller will have no obligation or right to repurchase the Mortgage Loan or
substitute another Mortgage Loan, except as provided in this
Agreement;
24
(n) Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA lender’s title
insurance policy or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring (subject to the exceptions contained
in (k)(1), (2), (3) and (4) above) the Seller, its successors and assigns,
as to
the first or second priority lien, as applicable, of the Mortgage in the
original principal amount of the Mortgage Loan. Where required by applicable
state law or regulation, the Mortgagor has been given the opportunity to choose
the carrier of the required mortgage title insurance. The Seller, its successors
and assigns, are the sole insureds of such lender’s title insurance policy, such
title insurance policy has been duly and validly endorsed to the Purchaser
or
the assignment to the Purchaser of the Seller’s interest therein does not
require the consent of or notification to the insurer and such lender’s title
insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this Agreement
and the related Purchase Price and Terms Letter. 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, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other Person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(o) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration; and
neither the Seller nor, to the Seller’s knowledge, any prior mortgagee has
waived any default, breach, violation or event permitting acceleration. With
respect to each Second Lien Loan, (i) the First Lien Loan is in full force
and effect, (ii) there is no default, breach, violation or event of
acceleration existing under such prior 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 prior
mortgage contains a provision which allows or (B) applicable law requires,
the mortgagee under the Second Lien Loan to receive notice of, and affords
such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(p) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to or equal to the lien of the related Mortgage, which are not insured
against by the title insurance policy referenced in paragraph (n)
above;
25
(q) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (n) above and
all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(r) The
Mortgage Loan was originated by or for the Seller. The Mortgage Loan complies
with the terms, conditions and requirements of the Underwriting Standards in
all
material respects. The Mortgage Notes and Mortgages (exclusive of any riders)
are on forms generally acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Mortgage
Loan bears interest at the Mortgage Interest Rate set forth in the related
Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note are due
and
payable on the first day of each month. The Mortgage contains the usual and
enforceable provisions of the originator at the time of origination for the
acceleration of the payment of the unpaid principal amount of the Mortgage
Loan
if the related Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder;
(s) The
Mortgaged Property at origination of the related Mortgage Loan was and, to
the
Seller’s knowledge, currently is free of material damage and waste. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property;
(t) The
related Mortgage contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby.
Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s
sale of, the Mortgaged Property pursuant to the proper procedures, the holder
of
the Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. 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 subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption;
(u) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses,
except as may be required by local law, are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(v) The
Mortgage File contains an appraisal (or other valuation method as indicated
on
the related Mortgage Loan Schedule and otherwise acceptable to Xxxxxx Mae or
Xxxxxxx Mac for mortgage loans that have “DU” underwriter or loan prospector
approval, respectively) of the related Mortgaged Property signed prior to the
final approval of the mortgage loan application by a Qualified Appraiser. The
appraisal is in a form acceptable to Xxxxxx Mae or Xxxxxxx Mac;
26
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state, or
(2) qualified to do business in such state, or (3) federal savings and
loan associations or national banks or a Federal Home Loan Bank or savings
bank
having principal offices in such state, or (4) not doing business in such
state;
(x) The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in clause (k)
above and such collateral does not serve as security for any other
obligation;
(y) The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller or anyone on behalf of the Mortgagor, or paid by any source other
than the Mortgagor nor does it contain any other similar provisions which may
constitute a “buydown” provision. The Mortgage Loan is not a graduated payment
mortgage loan and the Mortgage Loan does not have a shared appreciation or
other
contingent interest feature;
(z) The
Mortgagor was not in bankruptcy or insolvent as of the date of origination
of
the Mortgage Loan and, to the Seller’s knowledge, is not in bankruptcy or
insolvent as of the related Closing Date;
(aa) Each
Fixed Rate Mortgage Loan has an original term to maturity of not more than
thirty (30) years, with interest calculated and payable in arrears on the
first day of each month in equal monthly installments of principal and interest.
Except with respect to Interest Only Mortgage Loans, each Mortgage Note requires
a monthly payment which is sufficient to fully amortize the original principal
balance of the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty (30) years and to pay interest at the related
Mortgage Interest Rate; provided, however, in the case of an Interest Only
Mortgage Loan, after the interest-only period, payments will be sufficient
to
amortize with respect to the life of the Mortgage Loan. No Mortgage Loan
contains terms or provisions which would result in negative amortization. No
Mortgage Loan is a Balloon Mortgage Loan;
(bb) If
a
Mortgage Loan has an LTV greater than 80%, the portion of the principal balance
of such Mortgage Loan in excess of the portion of the Appraisal Value of the
Mortgaged Property required by Xxxxxx Mae, is and will be insured as to payment
defaults by a Primary Mortgage Insurance Policy issued by a Qualified Insurer.
All provisions of such Primary Mortgage Insurance Policy have been and are
being
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. No action, inaction, or event has occurred and no
state of facts exists that has, or will result in the exclusion from, denial
of,
or defense to coverage. Any Mortgage Loan subject to a Primary Mortgage
Insurance Policy obligates the Mortgagor thereunder to maintain the Primary
Mortgage Insurance Policy and to pay all premiums and charges in connection
therewith. The mortgage interest rate for the Mortgage Loan as set forth on
the
related Mortgage Loan Schedule is net of any such insurance
premium;
27
(cc) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) As
to
Mortgage Loans that are not Co-op Loans and that are not secured by an interest
in a leasehold estate, the Mortgaged Property is located in the state identified
in the related Mortgage Loan Schedule and consists of a single parcel of real
property with a detached single family residence erected thereon, or a
townhouse, or a two-to four-family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or
a de minimis planned unit development, provided,
however,
that no
residence or dwelling is a mobile home, log home, geodesic dome or other unique
property type. As of the date of origination, no portion of the Mortgaged
Property was used for commercial purposes, and, since the date of origination
no
portion of the Mortgaged Property has been used for commercial purposes, except
as permitted under the Underwriting Standards. In
the
case of any Mortgaged Properties that are manufactured homes (a “Manufactured
Home Mortgage Loan”),
(i) such Manufactured Home Mortgage Loan conforms with the applicable
Xxxxxx Xxx or Xxxxxxx Mac requirements regarding mortgage loans related to
manufactured dwellings, (ii) the related manufactured dwelling is
permanently affixed to the land, (iii) the related manufactured dwelling
and the related land are subject to a Mortgage properly filed in the appropriate
public recording office and naming Seller as mortgagee, (iv) the applicable
laws of the jurisdiction in which the related Mortgaged Property is located
will
deem the manufactured dwelling located on such Mortgaged Property to be a part
of the real property on which such dwelling is located, and (v) such
Manufactured Home Mortgage Loan is (x) a qualified mortgage under
Section 860G(a)(3)
of the Code and (y) secured by manufactured housing treated as a single
family residence under Section 25(e)(10) of the Code. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used
for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household
purposes;
(ee) Except
with respect to Interest Only Mortgage Loans, principal payments on the Mortgage
Loan commenced no more than sixty (60) days after the funds were disbursed
in connection with such Mortgage Loan;
28
(ff) No
Mortgage Loan imposes a Prepayment Penalty;
(gg) As
of the
date of origination of the Mortgage Loan, the Mortgaged Property was lawfully
occupied under applicable law, and all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
(hh) If
the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development), or stock in a cooperative housing
corporation, such condominium, cooperative or planned unit development project
meets the Seller’s eligibility requirements as set forth in Underwriting
Standards;
(ii) There
is
no pending action or proceeding directly involving the Mortgaged Property in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with respect
to the Mortgage Property; and, to the best of the Seller’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each such
law,
rule or regulation constituting a prerequisite to use and enjoyment of said
property;
(jj) The
related 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 or other similar state statute;
(kk) No
action
has been taken or failed to be taken by the Seller on or prior to the related
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any Primary Mortgage Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Seller, or
for
any other reason under such coverage;
(ll) Each
Mortgage Loan has been serviced in all material respects in compliance with
Accepted Servicing Practices;
(mm) With
respect to each Co-op Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative shares securing
the related cooperative note, subject only to (a) liens of the cooperative
for unpaid assessments representing the Mortgagor’s pro rata share of the
cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interest in the cooperative shares
relating to each Co-op Loan (except for unpaid maintenance, assessments and
other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Co-op Loan), which
have priority over the Seller’s security interest in such cooperative
shares;
29
(nn) With
respect to each Co-op Loan, a search for filings of financing statements has
been made by a company competent to make the same, which company is acceptable
to Xxxxxx Xxx and qualified to do business in the jurisdiction where the
cooperative unit is located, and such search has not found anything which would
materially and adversely affect the Co-op Loan;
(oo) With
respect to each Co-op Loan, the related cooperative corporation that owns title
to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Code, is held by a
Person as a tenant-stockholder (as defined in Section 216 of the Code) and
is in material compliance with applicable federal, state and local laws which,
if not complied with, could have a material adverse effect on the Mortgaged
Property;
(pp) With
respect to each Co-op Loan, there is no prohibition against pledging the shares
of the cooperative corporation or assigning the Co-op Lease;
(qq) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority;
(rr) With
respect to any ground lease to which a Mortgaged Property may be subject:
(i) a true, correct and complete copy of the ground lease and all
amendments, modifications and supplements thereto is included in the Servicing
File, and the Mortgagor is the owner of a valid and subsisting leasehold
interest under such ground lease; (ii) such ground lease is in full force
and effect, unmodified and not supplemented by any writing or otherwise except
as contained in the Mortgage File; (iii) all rent, additional rent and
other charges reserved therein have been fully paid to the extent payable as
of
the related Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful
possession of the leasehold estate, subject to any sublease; (v) the
Mortgagor is not in default under any of the terms of such ground lease, and
there are no circumstances which, with the passage of time or the giving of
notice, or both, would result in a default under such ground lease;
(vi) the lessor under such ground lease is not in default under any of the
terms or provisions of such ground lease on the part of the lessor to be
observed or performed; (vii) the lessor under such ground lease has
satisfied any repair or construction obligations due as of the related Closing
Date pursuant to the terms of such ground lease; (viii) the execution,
delivery and performance of the Mortgage do not require the consent (other
than
those consents which have been obtained and are in full force and effect) under,
and will not contravene any provision of or cause a default under, such ground
lease; (ix) the ground lease term extends beyond the maturity date of the
related Mortgage Loan; and (x) the Purchaser has the right to cure defaults
on the ground lease;
30
(ss) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the borrower and no claims will
arise
as to broker fees that are double charged and for which the borrower would
be
entitled to reimbursement;
(tt) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulations
Section 1.860G-2(a)(1);
(uu) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the Assignment
of Mortgage and the other documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered to
the
Purchaser or its designee;
(vv) To
the
Seller’s knowledge, all information supplied by, on behalf of, or concerning the
Mortgagor is true, accurate and complete and does not contain any statement
that
is or will be inaccurate or misleading in any material respect;
(ww) 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 adjustable rate mortgage loans. The Seller shall maintain such statement
in
the Servicing File;
(xx) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
100%. No Second Lien Loan has an CLTV in excess of 100%;
(yy) Either
(a) no consent for the Second Lien Loan is required by the holder of the
related First Lien Loan or (b) such consent has been obtained and is
contained in the Mortgage File;
(zz) With
respect to any Second Lien Loan, the Seller has not received notice of:
(1) any proceeding for the total or partial condemnation of any Mortgaged
Property, (2) any subsequent, intervening mortgage, lien, attachment, lis
pendens or other encumbrance affecting any Mortgaged Property or (3) any
default under any mortgage, lien or other encumbrance senior to each
Mortgage;
(aaa) No
Second
Lien Loan is a “home equity line of credit”;
(bbb) As
of the
Closing Date, the Seller has not received a notice of default of a First Lien
Loan which has not been cured;
(ccc) No
First
Lien Loan provides for negative amortization;
(ddd) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable and no Mortgage
Loan is covered by HOEPA. No Mortgage Loan originated or modified on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act;
31
(eee) No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, disability, property, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment or health insurance) in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as part of
the
origination of, or as a condition to closing, such Mortgage Loan:
(fff) The
origination and servicing practices with respect to each Mortgage Note and
Mortgage have been legal and in accordance with applicable laws and regulations,
and in all material respects proper and prudent in the mortgage origination
and
servicing business. With respect to escrow deposits and payments that the Seller
is entitled to collect, all such payments are in the possession of, or under
the
control of, the Seller, and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made.
All
escrow payments have been collected and are being maintained in full compliance
with applicable state and federal law and the provisions of the related Mortgage
Note and Mortgage. As to any Mortgage Loan that is the subject of an escrow,
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every escrowed item that remains unpaid and
has
been assessed but is not yet due and payable. No escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized under
any
Mortgage or the related Mortgage Note. All Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the terms
of
the related Mortgage Note. Any interest required to be paid pursuant to state
and local law has been properly paid and credited;
(ggg) No
Mortgage Loan is a Convertible Mortgage Loan;
(hhh) With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(iii) Any
future advances made to the Mortgagor prior to the applicable 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. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by a title
insurance policy, an endorsement to the policy insuring the Mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Mae and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jjj) There
is
no proceeding pending or threatened for the total or partial condemnation of
the
Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so
as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and the Seller has no knowledge of any
such proceedings in the future;
32
(kkk) No
Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property (other than a
tax
deferred exchange under Section 1031 of the Code);
(lll) If
applicable, with respect to each Mortgage, the Seller has within the last twelve
months (unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the amount
of such payments so that, assuming all required payments are timely made, any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(mmm) As
to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by the Seller to the Purchaser,
the Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. The Seller has and, to the extent required during the related
Interim Servicing Period, shall in its capacity as interim servicer, for each
Mortgage Loan, 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;
(nnn) If
the
Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the Mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the Mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the jurisdiction
in
which the Mortgaged Property is located;
(ooo) Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
issued by First American Real Estate Tax Service, and such contract is
transferable;
(ppp) The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Seller’s underwriting
guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
33
(qqq) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser and any Mortgage Loan
for
which the related Mortgage has been recorded in the name of MERS) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Seller, or is in the
process of being recorded;
(rrr) On
or
prior to the related Closing Date, the Mortgagor has not filed a bankruptcy
petition or has not become the subject of involuntary bankruptcy proceedings
or
has not consented to the filing of a bankruptcy proceeding against it or to
a
receiver being appointed in respect of the related Mortgaged
Property;
(sss) No
Mortgagor with respect to any Mortgage Loan originated on or after
August 1, 2004 is
required under the Mortgage or Mortgage Note
to
submit to
arbitration to resolve any dispute arising out of or relating in any way to
the
mortgage loan transaction;
(ttt) The
Seller has complied with all applicable anti-money laundering laws, executive
orders and regulations, including without limitation the USA Patriot Act of
2001;
(uuu) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to
Section 2.06 of this Agreement shall be delivered to the Purchaser or its
designee all in compliance with the specific requirements of Section 2.06.
With respect to each Mortgage Loan, the Seller will be in possession of a
complete Mortgage File in compliance with Exhibit A-1
hereto,
except for such documents as will be delivered to the Purchaser or its
designee;
(vvv) With
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate is the related Gross Margin;
(www) The
Seller has no knowledge of any circumstances or conditions with respect to
the
related Mortgage, Mortgaged Property, Mortgagor, Mortgage File or the related
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors that invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable
investment;
(xxx) With
respect to the Mortgage Loans, the Mortgagor was offered mortgage loan products
suitable for such Mortgagor and not designed for less creditworthy
borrowers;
(yyy) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective criteria which relate the Mortgagor’s income, assets and
liabilities (except in the case of loan programs which do not require the
Mortgagor to report the Mortgagor’s income or assets, such as “no income, no
assets” lending programs or which rely on the Mortgagor’s representation of the
Mortgagor’s income, such as “stated income” lending programs) to the proposed
payment and such underwriting methodology does not rely on the extent of the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such credit extension. Such underwriting methodology determined that
at the time of origination (application/approval) the Mortgagor had the
reasonable ability to make timely payments on the Mortgage Loan;
and
34
(zzz) No
Mortgagor was charged Points and Fees, whether or not amortized or financed,
greater than 5% of the principal amount of such Mortgage Loan. For purposes
of
this representation, such 5% limitation is calculated in accordance with Xxxxxx
Mae’s anti-predatory lending requirements as set forth in the Xxxxxx Mae Guides
and Points and Fees (x) include origination, underwriting, broker and finder
fees and charges that the Mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the Mortgagee or a third party, and
(y)
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), 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% of the principal amount of
such
Mortgage Loan (collectively, “Points and Fees”). All fees and charges (including
finance charges) and whether or not financed, assessed, collected or to be
collected in connection with the origination and servicing of each Mortgage
Loan
has been disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation.
Section
3.03. Repurchase;
Substitution.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and delivery
of the Mortgage File to the Purchaser, or its designee, and shall inure to
the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination,
or lack of examination, of any Mortgage Loan Document. Upon discovery by the
Seller or the Purchaser of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the others. The
Seller shall have a period of ninety (90) days from the earlier of its discovery
or its receipt of notice of any such breach within which to correct or cure
such
breach. The Seller hereby covenants and agrees that (except as provided in
the
previous sentence with respect to certain breaches for which no substitution
is
permitted) if any such breach is not corrected or cured within such ninety
(90)
day period, the Seller shall, at the Purchaser’s option, either repurchase such
Mortgage Loan at the Repurchase Price or substitute a mortgage loan for the
Defective Mortgage Loan as provided below. In the event that any such breach
shall involve any representation or warranty set forth in Section 3.01, and
such
breach is not cured within ninety (90) of the earlier of either discovery by
or
notice to the Seller of such breach, all affected Mortgage Loans shall, at
the
option of the Purchaser, be repurchased by the Seller at the Repurchase Price.
Any such repurchase shall be accomplished by remitting the Purchaser the amount
of the Repurchase Price.
35
Notwithstanding
the foregoing paragraph, any breach of any representation or warranty set forth
in any of clause (i), (dd), (ff), (tt), (ddd), (eee), (mmm), (sss), (xxx),
(yyy)
or (zzz) of Section 3.02 shall automatically be deemed to have had a material
and adverse effect on the Purchaser. With respect to each such affected Mortgage
Loan, the Seller shall, within sixty (60) days after the earlier of either
discovery by, or notice to, the Seller of such breach, repurchase such Mortgage
Loan at the Repurchase Price.
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Seller, or if such repurchase occurs after the
related Servicing Transfer Date, the Purchaser, shall either (i) cause MERS
to execute and deliver an assignment of the Mortgage in recordable form to
transfer the Mortgage from MERS to the Seller 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 as the beneficial holder of such Mortgage Loan.
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this
Section 3.03 as a result of a breach of any of the representations and
warranties set forth in Section 3.02, the Seller may, with the Purchaser’s
prior consent, which consent shall not be unreasonably withheld, within
180 days from the related Closing Date, remove such defective Mortgage Loan
from the terms of this Agreement and substitute another mortgage loan for such
defective Mortgage Loan, in lieu of repurchasing such defective Mortgage Loan.
Any substitute Mortgage Loan shall (a) have a principal balance at the time
of substitution not in excess of the principal balance of the defective Mortgage
Loan (the amount of any difference, plus one month’s interest thereon at the
Mortgage Interest Rate borne by the defective Mortgage Loan, being paid by
the
Seller and deemed to be a Principal Prepayment to be remitted to the Purchaser
by the Seller), (b) have a Mortgage Interest Rate not less than, and not
more than one percentage point greater than, the Mortgage Interest Rate of
the
removed Mortgage Loan, (c) have a remaining term to stated maturity not
later than, and not more than one year less than, the remaining term to stated
maturity of the removed Mortgage Loan, (d) have a Loan-to-Value Ratio at
origination no greater than that of the removed Mortgage Loan, (e) with
respect to any Second Lien Loan, have an Combined Loan-to-Value Ratio at
origination no greater than that of the removed Mortgage Loan, (f) have the
same lien priority as that of the removed Mortgage Loan and (g) be, in the
reasonable determination of the Purchaser, in material compliance with the
representations and warranties contained in this Agreement and described in
Section 3.02 as of the date of substitution.
If
such
substitution occurs during the related Interim Servicing Period, the Seller
shall amend the related Mortgage Loan Schedule to reflect the withdrawal of
the
removed Mortgage Loan from this Agreement and the substitution of such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. The Monthly Payment on a substitute Mortgage Loan due on the Due Date
in
the month of substitution shall be the property of the Seller and the Monthly
Payment on the Defective Mortgage Loan for which the substitution is made due
on
the such date shall be the property of the Purchaser.
36
It
is
understood and agreed that the obligations of the Seller set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage
Loan, and to indemnify Purchaser pursuant to Section 7.01, constitute the
sole remedies of the Purchaser respecting a breach of the foregoing
representations and warranties. If the Seller fails to repurchase or substitute
for a defective Mortgage Loan in accordance with this Section 3.03, or
fails to cure a defective Mortgage Loan to Purchaser’s reasonable satisfaction
in accordance with this Section 3.03, or to indemnify Purchaser pursuant to
Section 7.01, that failure shall, upon compliance by the Purchaser with the
next to the last paragraph of this Section 3.03, entitle the Purchaser to
pursue all available remedies.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to any Mortgage Loan upon (i) the earlier of discovery of such breach by
the Seller or notice thereof by the Purchaser to the Seller, (ii) failure
by the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance
with this Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, Purchaser may, in connection
with
any repurchase or substitution of a Defective Mortgage Loan pursuant to this
Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on “prohibited transactions” of such
REMIC (as defined in Section 860F of the Code) or otherwise subject the
REMIC to tax, or (ii) cause the REMIC to fail to qualify as a REMIC at any
time.
Section
3.04. Repurchase
of Mortgage Loans With First Payment Defaults.
If
a
Mortgagor is thirty (30) days or more delinquent with respect to the first
Monthly Payment due to the Purchaser on the related Mortgage Loan immediately
following the related Closing Date, the Seller, at the Purchaser’s option, shall
promptly repurchase such Mortgage Loan from the Purchaser within thirty (30)
calendar days’ of receipt of written notice from the Purchaser. Any
repurchase pursuant to this Section 3.04 shall be effected in accordance
with the procedures set forth in Section 3.03 hereof, however, any such
repurchase shall be made at the Repurchase Price.
Section
3.05. Purchase
Price Protection.
With
respect to any Mortgage Loan that prepays in full during the first sixty
(60) days following the related Closing Date, the Seller shall reimburse
the Purchaser the amount (if any) by which the Purchase Price paid by the
Purchaser to the Seller exceeded 100% of the outstanding Stated Principal
Balance of the Mortgage Loan as of the related Cut-off Date, within thirty
(30) days of such payoff. Upon any assignment of a Mortgage Loan and/or
this Agreement, the Purchaser may at its option retain its rights under this
Section 3.05 notwithstanding such assignment.
37
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
Section
4.01. Interim
Servicing of the Mortgage Loans.
The
Seller shall service and administer the related Mortgage Loans from each Closing
Date through the related Servicing Transfer Date on the Purchaser’s behalf in
accordance with this Agreement and Accepted Servicing Practices. Unless
otherwise specified in the related Assignment and Conveyance, the related
Servicing Transfer Date shall be the first day of the second month following
the
month in which the related Closing Date occurs. The Seller shall collect any
payments due from the related Mortgagors within the first month following the
month in which the related Closing Date occurs. Beginning with the second month
following the month in which the related Closing Date occurs, the Purchaser
or
its designee shall collect all payments due from the related
Mortgagors.
During
the Interim Servicing Period, the Seller shall, without the need for the
consultation with the Purchaser, perform the following functions in accordance
with this Agreement:
(a) receive
and process Mortgagor payments;
(b) make
all
required disbursements from the Escrow Account in its own name;
(c) handle
in
its own name all collection efforts with the Mortgagors for Mortgage Loans
delinquent less than 60 days; and
(d) provide
and handle all guarantor and insurer delinquency notices in its own
name.
The
Seller shall consult with the Purchaser regarding the servicing of the Mortgage
Loans when the matter in question involves the expenditure of sums in excess
of
$2,000, such matters including, but not limited to, matters relating to the
presentation of claims for payment and the disbursement of proceeds collected
under Primary Mortgage Insurance Policies relating to the Mortgage Loans and
for
the commencement of foreclosure proceedings. The Seller shall notify the
Purchaser of all such matters by telephone, electronic mail, facsimile
transmission or overnight mail. The Purchaser, in a separate verbal or written
notice to the Seller by telephone, telecopier, email or mail, has appointed
the
Contact to deal with all such matters relating to the Mortgage Loans, and the
Seller may rely on any determination made by the Contact and communicated to
the
Seller and shall not be held liable for the result of any action taken or
omitted in reliance on any determination made by the Contact.
Section
4.02. Collection
of Mortgage Loan Payments.
38
Continuously
from the date hereof until the date each Mortgage Loan ceases to be serviced
subject to this Agreement, the Seller will proceed diligently to collect all
payments due under each Mortgage Loan when the same shall become due and payable
and shall, to the extent such procedures shall be consistent with this
Agreement, Accepted Servicing Practices, and the terms and provisions of related
Primary Mortgage Insurance Policy, follow such collection procedures as it
follows with respect to mortgage loans comparable to the Mortgage Loans and
held
for its own account. Further, the Seller will take special care in ascertaining
and estimating annual escrow payments, and all other charges that, as provided
in the Mortgage, will become due and payable, so that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Section
4.03. Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts with
a
commercial bank, a savings bank or a savings and loan association (which may
be
a depository Affiliate of the Seller) which meets the guidelines set forth
by
Xxxxxx Xxx or Xxxxxxx Mac as an eligible depository institution for custodial
accounts. Each Custodial Account shall be an Eligible Account. Funds deposited
in a Custodial Account may be drawn on in accordance with Section 4.05. The
creation of any Custodial Account shall be evidenced by a letter agreement
in
the form shown in Exhibit B
hereto.
The original of such letter agreement shall be furnished to the Purchaser on
the
initial Closing Date, and upon the request of any subsequent
purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, within one
(1)
Business Day of receipt thereof, and retain therein the following payments
and
collections received or made by it subsequent to the Cut-off Date, or received
by it prior to the Cut-off Date but allocable to a period subsequent thereto,
other than in respect of principal and interest on the Mortgage Loans due on
or
before the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Interest Rate (less the related Interim Servicing Fee);
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.07, 4.09 and 4.10, 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 Accepted Servicing Practices,
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 Seller’s normal servicing procedures, the
loan documents or applicable law;
39
(vi) any
Servicing Advances made with respect to an Escrow Payment;
(vii) any
amounts required to be deposited by the Seller pursuant to Section 4.09 in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Seller’s own funds, without reimbursement
therefor; and
(viii) any
amounts required to be deposited in the Custodial Account pursuant to
Section 6.02.
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 Ancillary Fees, to the extent permitted
by
Section 6.01, need not be deposited by the Seller in the Custodial
Account.
The
Seller may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Seller for the benefit of the Seller, which shall
mature not later than the Business Day next preceding the Remittance Date next
following the date of such investment (except that (A) any investment in
the Eligible Institution with which the Custodial Account is maintained may
mature on such Remittance Date and (B) any other investment may mature on
such Remittance Date if the Seller shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to the
Purchaser) and shall not be sold or disposed of prior to maturity.
Notwithstanding anything to the contrary herein and above, all income and gain
realized from any such investment shall be for the benefit of the Seller and
shall be subject to withdrawal by the Seller from the Custodial Account pursuant
to Section 4.04(iv). The amount of any losses incurred in respect of any
such investments shall be deposited in the Custodial Account by the Seller
out
of its own funds immediately as realized.
Section
4.04. Permitted
Withdrawals From the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Interim
Servicing Fees, the Seller’s right to reimburse itself pursuant to this
subclause (ii) with respect to any Mortgage Loan being limited to related
proceeds from Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds;
(iii) to
pay to
itself as part of its servicing compensation: (a) any interest earned on
funds or any investment earnings in the Custodial Account net of any losses
on
such investments (all such amounts to be withdrawn monthly not later than each
Remittance Date), and (b) to the extent not otherwise retained, the Interim
Servicing Fee from that portion of any payment or recovery as to interest with
respect to a particular Mortgage Loan;
40
(iv) to
reimburse itself for unreimbursed Servicing Advances to the extent not fully
reimbursed pursuant to Section 4.04(ii) above;
(v) to
transfer funds to another Eligible Account in accordance with Section 4.08
hereof;
(vi) to
remove
funds inadvertently placed in the Custodial Account by the Seller or for which
amounts previously deposited are returned unpaid by the related Mortgagor’s
banking institution; and
(vii) to
clear
and terminate the Custodial Account on the applicable Servicing Transfer
Date.
Section
4.05. Establishment
of Escrow Accounts; Deposits in Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. Each Escrow Account shall be an Eligible Account. Funds
deposited in the Escrow Account may be drawn on by the Seller in accordance
with
Section 4.06. The creation of any Escrow Account shall be evidenced by a
letter agreement in the form shown in Exhibit C.
The
original of such letter agreement shall be furnished to the Purchaser on the
initial Closing Date, and upon request to any subsequent purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, within
two (2) Business Days of receipt thereof, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.06. The Seller shall
be entitled to retain any interest paid on funds deposited in an Escrow Account
by the depository institution other than interest on escrowed funds required
by
law to be paid to the Mortgagor and, to the extent required by law, the Seller
shall pay interest on escrowed funds to the Mortgagor notwithstanding that
such
Escrow Account is non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section
4.06. Permitted
Withdrawals From the Escrow Account.
41
Withdrawals
from the Escrow Account may be made by the Seller only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items for the related
Mortgage;
(ii) to
reimburse the Seller for any Servicing Advance made by the Seller with respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Seller, or to the Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this
Agreement;
(viii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.05;
(ix) to
remove
funds inadvertently placed in the Escrow Account by the Seller or for which
amounts previously deposited are returned unpaid by the related Mortgagor’s
banking institution; and
(x) to
clear
and terminate the Escrow Account upon the applicable Servicing Transfer
Date.
Section
4.07. Payment
of Taxes, Insurance and Charges; Maintenance of Primary Mortgage Insurance;
Collections Thereunder.
With
respect to each Mortgage Loan during the related Interim Servicing Period,
the
Seller shall maintain accurate records reflecting the status of ground rents,
taxes, assessments, water rates and other charges which are or may become a
lien
upon the Mortgaged Property and the status of primary mortgage insurance
premiums (if any) and fire and hazard insurance coverage and shall obtain,
from
time to time, all bills for the payment of such charges, including renewal
premiums and shall effect payment thereof prior to the applicable penalty or
termination date and at a time appropriate for securing maximum discounts
allowable, employing for such purpose deposits of the Mortgagor in the Escrow
Account which shall have been estimated and accumulated by the Seller in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage or
applicable law. To the extent that the Mortgage does not provide for Escrow
Payments, the Seller shall determine that any such payments are made by the
Mortgagor at the time they first become due. The Seller assumes full
responsibility for the timely payment of all ground rents, taxes, assessments,
water rates and other charges 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 subject to its ability to recover such Servicing Advances
pursuant to Sections 4.04(ii) and (iv). Notwithstanding the foregoing, if
the Seller reasonably determines that any such Servicing Advance would not
be
recoverable from amounts collected on the related Mortgage Loan, the Seller
shall have no obligation to make such Servicing Advance. Any such determination
shall be evidenced by an Officer’s Certificate delivered to the Purchaser
indicating the reasons therefor.
42
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each First Lien Loan
for
which such coverage is herein required. Such coverage will be maintained until
the Loan-to-Value ratio of the related Mortgage Loan is reduced to the amount
for which Xxxxxx Mae no longer requires such insurance to be maintained. The
Seller will not cancel or refuse to renew any Primary Mortgage Insurance Policy
in effect on the related Closing Date that is required to be kept in force
under
this Agreement unless a replacement Primary Mortgage Insurance Policy for such
canceled or non-renewed policy is obtained from and maintained with a Qualified
Insurer. The Seller shall not take any action which would result in non-coverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Seller would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Seller shall promptly notify the insurer under
the
related Primary Mortgage Insurance Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under the Primary Mortgage Insurance Policy. If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Seller shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Primary Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted first lien Mortgage Loan. Pursuant
to
Section 4.03, any amounts collected by the Seller under any Primary
Mortgage Insurance Policy shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Section 4.04.
Section
4.08. Transfer
of Accounts.
The
Seller may transfer a Custodial Account or an Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
providing notice of the transfer to the Purchaser.
43
Section
4.09. Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan during the related
Interim Servicing Period fire and hazard insurance with extended coverage as
is
acceptable to Xxxxxx Xxx or Xxxxxxx Mac and customary in the area where the
Mortgaged Property is located in an amount which is equal to the lesser of
(i) the maximum insurable value of the improvements securing such Mortgage
Loan and (ii) the greater of (a) the outstanding principal balance of
the Mortgage Loan, and (b) an amount such that the proceeds thereof shall
be sufficient to prevent the Mortgagor and/or the mortgagee from becoming a
co-insurer. If required by the Flood Disaster Protection Act of 1973, as
amended, each Mortgage Loan shall be covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration in effect with an insurance carrier acceptable to Xxxxxx Mae
or
Xxxxxxx Mac, in an amount representing coverage not less than the least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the
maximum insurable value of the improvements securing such Mortgage Loan and
(iii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during the term
of
the Mortgage Loan, the Seller determines in accordance with applicable law
and
pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Seller shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if the related
Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Seller shall immediately
force
place the required flood insurance on the Mortgagor’s behalf. Any amounts
collected by the Seller under any such policies other than amounts to be
deposited in the Escrow Account and applied to the restoration or repair of
the
Mortgaged Property, or released to the Mortgagor in accordance with Accepted
Servicing Practices, shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.04. It is understood and agreed that no
other additional insurance need be required by the Seller or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to this
Agreement, the Xxxxxx Xxx Guides or such applicable state or federal laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Seller and its successors and/or
assigns and shall provide for at least thirty (30) days prior written notice
of
any cancellation, reduction in the amount or material change in coverage to
the
Seller. The Seller shall not interfere with the Mortgagor’s freedom of choice in
selecting either his insurance carrier or agent, provided,
however,
that
the Seller shall not accept any such insurance policies from insurance companies
unless such companies are Qualified Insurers.
Section
4.10. Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller (or an Affiliate of the Seller) shall obtain and maintain
a blanket policy issued by an issuer acceptable to Xxxxxx Mae or Xxxxxxx Mac
insuring against hazard losses on all of the Mortgage Loans, then, to the extent
such policy provides coverage in an amount equal to the amount required pursuant
to Section 4.09 and otherwise complies with all other requirements of Section
4.09, it shall conclusively be deemed to have satisfied its obligations as
set
forth in Section 4.09, it being understood and agreed that such policy may
contain a deductible clause, in which case the Seller shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with Section 4.09, and there shall have been a loss which would have
been covered by such policy, deposit in the Custodial Account the amount not
otherwise payable under the blanket policy because of such deductible clause.
In
connection with its activities as servicer of the Mortgage Loans, the Seller
agrees to prepare and present, on behalf of the Purchaser, claims under any
such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of such policy and shall use commercially
reasonable efforts to obtain a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without thirty
(30) days’ prior written notice to the Purchaser.
44
Section
4.11. Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Seller shall maintain, at its own expense, a blanket Fidelity Bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other Persons acting in any capacity with regard
to the Mortgage Loans to handle funds, money, documents and papers relating
to
the Mortgage Loans. The Fidelity Bond shall be in the form of a mortgage
banker’s blanket bond and shall protect and insure the Seller against losses,
including forgery, theft, embezzlement and fraud of such Persons. The errors
and
omissions insurance shall protect and insure the Seller against losses arising
out of errors and omissions and negligent acts of such Persons. Such errors
and
omissions insurance shall also protect and insure the Seller against losses
in
connection with the failure to maintain any insurance policies required pursuant
to this Agreement and the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.11 requiring the Fidelity Bond or errors and
omissions insurance shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any
such
bond and insurance policy shall be at least equal to the corresponding amounts
required by Xxxxxx Mae in the Xxxxxx Xxx Guides or by Xxxxxxx Mac in the Xxxxxxx
Mac Guides. The Seller shall deliver to the Purchaser a certificate from the
surety and the insurer as to the existence of the Fidelity Bond and errors
and
omissions insurance policy and shall obtain a statement from the surety and
the
insurer that such Fidelity Bond or insurance policy shall in no event be
terminated or materially modified without thirty (30) days’ prior written notice
to the Purchaser. Upon request by the Purchaser, the Seller shall provide the
Purchaser with an insurance certificate certifying coverage under this Section
4.11, and will provide an update to such certificate upon request, or upon
renewal or material modification of coverage.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01. Distributions.
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 4.04, minus
(ii) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the preceding Determination Date, which amounts
shall be remitted on the Remittance Date next succeeding the Due Period for
such
amounts, and any Principal Prepayments received during the month of such
Remittance Date, which amounts shall be remitted on the next succeeding
Remittance Date.
45
With
respect to any remittance received by the Purchaser after the Business Day
following the Business Day on which such payment was due, the Seller shall
pay
to the Purchaser interest on any such late payment at an annual rate equal
to
the Prime Rate, adjusted as of the date of each change, plus two percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Seller
on
the date such late payment is made and shall cover the period commencing with
the day following the second Business Day on which such payment was due and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable on the earlier
of
the next succeeding Remittance Date or the date referenced in Section 8.02
on which the Net P&I Transfer Amount is remitted to the Purchaser. The
payment by the Seller of any such interest shall not be deemed an extension
of
time for payment.
Section
5.02. Statements
to the Purchaser.
The
Seller shall furnish the Purchaser on each Remittance Date a remittance advice
report in a form mutually agreeable to the Seller and Purchaser.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01. Assumption
Agreements.
The
Seller 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 to the extent permitted by law; provided,
however,
that
the Seller shall not exercise any such rights if prohibited by law or the terms
of the Mortgage Note from doing so or if the exercise of such rights would
impair or threaten to impair any recovery under the related Primary Mortgage
Insurance Policy, if any. If the Seller reasonably believes it is unable under
applicable law to enforce such “due-on-sale” clause, the Seller will enter into
an assumption agreement with the Person to whom the Mortgaged Property has
been
conveyed or is proposed to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. If the Seller is prohibited under
applicable law from (a) entering into an assumption agreement with the
Person to whom the Mortgaged Property has been conveyed or is proposed to be
conveyed or (b) requiring the original Mortgagor to remain liable under the
Mortgage Note, the Seller, with the prior consent of the primary mortgage
insurer, if any, is authorized to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
46
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of the Xxxxxx Mae Guides.
With respect to an assumption or substitution of liability, the Mortgage
Interest Rate borne by the related Mortgage Note and the amount of the Monthly
Payment may not be changed. If the credit of the proposed transferee does not
meet such underwriting criteria, the Seller diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Seller shall notify the Purchaser that
any such substitution of liability or assumption agreement has been completed
by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. All fees collected by the Seller for entering into an assumption or
substitution of liability agreement shall belong to the Seller as additional
servicing compensation.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this
Section 6.01, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
6.02. Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 4.04
have been or will be so deposited, of a Servicing Officer and shall request
delivery to it of the portion of the Mortgage File held by the Purchaser. The
Purchaser shall no later than five (5) Business Days after receipt of such
certification and request, release or cause to be released to the Seller, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Seller shall promptly prepare and deliver to the Purchaser the requisite
satisfaction or release. No later than three (3) Business Days following its
receipt of such satisfaction or release, the Purchaser shall deliver, or cause
to be delivered, to the Seller the release or satisfaction properly executed
by
the owner of record of the applicable Mortgage or its duly appointed attorney
in
fact. If such Mortgage Loan is a MERS Mortgage Loan, the Seller is authorized
to
cause the removal from the registration on the MERS System of such Mortgage
and
to execute and deliver, on behalf of the Purchaser, any and all instruments
of
satisfaction or cancellation or of partial or full release.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the Mortgage Loan
Documents, the Seller, upon written demand, shall remit within two (2) Business
Days to the Purchaser the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account.
47
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser shall, upon request of the Seller and delivery
to the Purchaser of a servicing receipt signed by a Servicing Officer, release
the portion of the Mortgage File held by the Purchaser to the Seller. Such
servicing receipt shall obligate the Seller to return such Mortgage Loan
Documents to the Purchaser when the need therefor by the Seller no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or the Mortgage File has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Seller has
delivered to the Purchaser a certificate of a Servicing Officer certifying
as to
the name and address of the Person to which such Mortgage File 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 Seller.
Section
6.03. Servicing
Compensation.
During
the related Interim Servicing Period, the Seller shall be entitled to retain
from payments received by it on the Mortgage Loans the related Interim Servicing
Fee and shall be entitled to retain all Ancillary Fees to which Seller is
entitled. To the extent the Purchaser collects payments from the Mortgagors
as
provided in Section 4.01, the Seller shall submit a reasonably detailed
invoice reasonably acceptable to Purchaser for reimbursement of any related
Interim Servicing Fees and Ancillary Fees owed to the Seller in respect of
the
related Mortgage Loans. The Purchaser shall pay such amounts to the Seller
within two (2) Business Days of receipt of such invoice. All services to be
performed by the Seller hereunder (including, but not limited to, the
preparation and sending of notifications to Mortgagors and insurers) shall
be at
the sole cost and expense of the Seller.
Section
6.04. Purchaser’s
Right to Examine Seller Records.
At
its
expense, the Purchaser shall have the right to examine and audit upon reasonable
notice to the Seller, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Seller, or held by another for the
Seller or on its behalf or otherwise, which relates to the performance or
observance by the Seller of the terms, covenants or conditions of this
Agreement.
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to, OCC, OTS, FDIC and other similar
entities, access to any documentation regarding the Mortgage Loans in the
possession of the Seller which may be required by any applicable regulations.
Such access shall be afforded without charge, upon reasonable request, during
normal business hours and at the offices of the Seller, and in accordance with
the federal government, OCC, FDIC, OTS, or any other similar regulations;
provided,
however,
that in
connection with providing such access, the Seller shall not be required to
incur
any out-of-pocket costs unless provisions have been made for the reimbursement
thereof.
48
Section
6.05. Seller
Shall Provide Information as Reasonably Required.
The
Seller shall furnish to the Purchaser during the term of this Agreement such
periodic, special or other reports, information or documentation as the
Purchaser may reasonably request, as shall be necessary, reasonable or
appropriate in respect to the Mortgage Loans and the performance of the Seller
under this Agreement, including any reports, information or documentation
reasonably required to comply with any regulations regarding any supervisory
agents or examiners of the Purchaser; provided, that, the Seller shall not
be
liable for any out-of-pocket costs with respect to the provision of such
reports, information or documentation. All such reports or information shall
be
provided by and in accordance with such applicable instructions and directions
as the Purchaser may reasonably request in relation to this Agreement or the
performance of the Seller under this Agreement. The Seller agrees to execute
and
deliver all such instruments and take all such action as the Purchaser, from
time to time, may reasonably request in order to effectuate the purpose and
to
carry out the terms of this Agreement.
The
Seller, upon reasonable advance notice, shall make reasonably available to
the
Purchaser or any prospective purchaser a knowledgeable financial or accounting
officer for the purpose of answering questions and to permit any prospective
purchaser to inspect the Seller’s servicing facilities for the purpose of
satisfying such prospective purchaser that the Seller has the ability to service
the Mortgage Loans as provided in this Agreement.
The
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
ARTICLE
VII
THE
SELLER
Section
7.01. Indemnification;
Third Party Claims.
The
Seller agrees to indemnify and hold the Purchaser and its present and former
directors, officers, employees and agents harmless from any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that any of such parties
may
sustain in any way related to the failure of the Seller to observe and perform
its duties, obligations, covenants, and agreements and to service the Mortgage
Loans in compliance with the terms of this Agreement or as a result of the
breach of a representation or warranty set forth in Sections 3.01 or 3.02
of this Agreement. The Seller hereunder shall immediately notify the Purchaser
if a claim is made by a third party with respect to this Agreement or a Mortgage
Loan, assume (with the consent of the Purchaser) the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Seller shall follow
any written instructions received from the Purchaser in connection with such
claim. The Purchaser shall promptly reimburse the Seller for all amounts
advanced by it pursuant to the two preceding sentences except when the claim
relates to the failure of the Seller to service and administer the Mortgage
Loans in compliance with the terms of this Agreement, the failure of the Seller
to perform its duties and obligations pursuant to this Agreement, the breach
of
representation or warranty set forth in Sections 3.01 or 3.02, or the gross
negligence, bad faith or willful misconduct of the Seller. The provisions of
this Section 7.01 shall survive termination of this Agreement.
49
Section
7.02. Limitation
on Liability of the Seller and Others.
The
duties and obligations of the Seller shall be determined solely by the express
provisions of this Agreement, the Seller shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Seller. Neither the Seller nor any of the directors,
officers, employees or agents of the Seller shall be under any liability to
the
Purchaser for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement, or for errors in judgment made in
good
faith; provided, however, that this provision shall not protect the Seller
or
any such Person against any breach of warranties or representations made herein,
or failure to perform its obligations in compliance with any standard of care
set forth in this Agreement, or any liability which would otherwise be imposed
by reason of negligence, bad faith or willful misconduct, or any breach of
the
terms and conditions of this Agreement. The Seller and any director, officer,
employee or agent of the Seller may rely in good faith on any document of any
kind prima facie properly executed and submitted by Purchaser respecting any
matters arising hereunder. The Seller shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to
its
duties to service the Mortgage Loans in accordance with this Agreement and
which
in its reasonable opinion may involve it in any expenses or
liability.
Section
7.03. No
Transfer of Servicing.
With
respect to the retention of the Seller to interim service the Mortgage Loans
hereunder, the Seller acknowledges that the Purchaser has acted in reliance
upon
the Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section 7.03, the Seller shall not either assign this Agreement or
the interim servicing hereunder or delegate its rights or duties hereunder
or
any portion thereof without the prior written approval of the Purchaser, which
consent may be withheld in the Purchaser’s discretion exercised in good faith.
Notwithstanding the foregoing, the Seller may, without the consent of the
Purchaser, retain reasonable and necessary third party contractors to perform
certain interim servicing and loan administration functions, including and
limited to, hazard insurance administration, tax payment and administration,
flood certification and administration and foreclosure activities; provided,
that such contractors shall perform such interim servicing and loan
administrative functions in a manner consistent with this Agreement; provided,
further, that the retention of such contractors by Seller shall not limit the
obligation of the Seller to interim service the Mortgage Loans pursuant to
the
terms and conditions of this Agreement or release it from any of its obligations
hereunder.
50
Section
7.04. Seller
Not to Resign.
The
Seller shall not resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 11.01.
Section
7.05. Merger
or Consolidation of the Seller.
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and 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 perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated (including by means
of sale or disposal of all or substantially all of the Seller’s assets), 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, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified and in good standing
to service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
ARTICLE
VIII
SERVICING
TRANSFER
Section
8.01. Mechanics
of Servicing Transfer.
Transfer
of the servicing relating to the Mortgage Loans shall take place in accordance
with the terms herein and the procedures set forth in the Servicing Transfer
Instructions, attached hereto as Exhibit G.
While
certain items relating to matters set forth in the Servicing Transfer
Instructions are mentioned in the body of this Agreement, such mention or lack
thereof, subject to the immediately following sentence, shall not be deemed
to
operate to release the Seller from its obligation to perform in accordance
with
the Servicing Transfer Instructions. In the event of a conflict between this
Agreement and the Servicing Transfer Instructions, this Agreement shall
prevail.
51
The
Seller shall mail to the Mortgagor of each related Mortgage Loan a letter
advising such Mortgagor of the transfer of the servicing of the related Mortgage
Loan to the Purchaser, or its designee, in accordance with the Xxxxxxxx Xxxxxxxx
National Affordable Housing Act of 1990; provided, however, the content and
format of the letter shall have the prior approval of the Purchaser or its
designee. The Seller shall provide the Purchaser or its designee with copies
or,
if applicable, preliminary forms of all such related notices no later than
the
related Servicing Transfer Date.
Section
8.02. Escrows
and Other Amounts Relating to the Mortgage Loans
(a) Transfer
of Net P&I Transfer Amount and Net T&I Transfer Amount.
The
Servicing Transfer Instructions shall govern the transfer of the Net P&I
Transfer Amount and the Net T&I Transfer Amount, as those terms are
hereinafter defined. In addition to providing the reports as described in the
Servicing Transfer Instructions, the Seller shall (i) transfer to the
Purchaser or its designee within five (5) Business Days after the related
Servicing Transfer Date, in immediately available funds by wire transfer, an
amount equal to the net escrow account balances, impound and suspense balances,
buydown funds, and all loss draft balances not paid to the Purchaser or its
designee and all other amounts associated with the Mortgage Loans, less
recoverable Servicing Advances and unpaid Interim Servicing Fees and Ancillary
Fees; (ii) provide the Purchaser or its designee with an accounting
statement, in hard copy, separately identifying each of the foregoing items
for
each Mortgage Loan sufficient to enable Purchaser or its designee to reconcile
the amount of each such payment with the accounts of the related Mortgage Loan;
and (iii) transfer to the Purchaser or its designee, within two
(2) Business Days of the related Servicing Transfer Date, in immediately
available funds by wire transfer, the amount of any prepaid Mortgage Loan
payments and all other similar amounts held by the Seller.
(b) Net
T&I Transfer Amount.
The Net
T&I Transfer Amount shall be calculated as follows:
| (i) |
The
sum of all amounts relating to the Mortgage
Loans:
|
|
A.
|
then
held in escrow for payment of taxes, insurance and similar charges;
plus
|
|
B.
|
any
amounts representing interest on any such amounts set forth in
(A) above which is required to be paid to the Mortgagor pursuant to
applicable law or the terms of the related Mortgage Loan;
plus
|
|
C.
|
proceeds
of any insurance policies not yet remitted to the Purchaser or its
designee or released to or upon the instructions of the Mortgagor
pursuant
to this Agreement or the Xxxxxx Xxx Guides;
plus
|
|
D.
|
amounts
held in suspense accounts, representing partial payments of principal
and
interest made by a Mortgagor (whether pursuant to a forbearance plan
or
otherwise), amounts representing unidentified funds remitted by the
Mortgagor and other similar
amounts;
|
52
| (ii) |
less
the following amounts relating to the Mortgage
Loans:
|
|
A.
|
any
amounts payable to the Seller as interest accrued on such accounts
on or
prior to the related Servicing Transfer Date in accordance with the
terms
of this Agreement, any agreement with the depository institution
maintaining such accounts and applicable law;
plus
|
|
B.
|
any
amounts in respect of advances of taxes, insurance and similar items
to
the extent that such amounts exceed the balance of the related escrow
account.
|
(c) Net
P&I Transfer Amount.
The Net
P&I Transfer Amount shall be calculated as follows:
| (i) |
The
sum of all amounts relating to the Mortgage
Loans:
|
|
A.
|
relating
to payments of principal and interest made by the related Mortgagor
(including Principal Prepayments in full and the related interest
payments
and partial Principal Prepayments);
plus
|
|
B.
|
any
other amounts payable by the Seller to the Purchaser or its designee
in
respect of any Mortgage Loan under the terms of this Agreement or
the
Xxxxxx Mae Guides;
|
(ii) less
the
outstanding Servicing Advances advanced by the Seller on or before the related
Servicing Transfer Date from its funds in connection with its servicing of
the
Mortgage Loans in accordance with Accepted Servicing Practices for which the
Seller has a right of reimbursement from Mortgagors, insurers, or
otherwise.
Section
8.03. Reconciliation
of Funds
With
respect to each Mortgage Loan Package, on or prior to thirty (30) days
following the related Servicing Transfer Date, the Seller and the Purchaser
or
its designee shall resolve any discrepancies between the Seller’s accounting
statement and the Purchaser or its designee’s reconciliation with respect
thereto and, not later than three (3) Business Days after the resolution of
such discrepancies, the Seller or the Purchaser or its designee as the case
may
be, shall transfer to the other, in immediately available funds by wire
transfer, any amounts to which the other party is entitled.
53
Section
8.04. Transfer
of Books and Records
With
respect to each Mortgage Loan Package, except as set forth below, all books,
records, documents, files, and other information and data in the Seller’s
possession, other than the documents evidencing each related Mortgage Loan
set
forth in this Agreement and any documents produced in connection with the
transfer of servicing hereunder (including, but not limited to, each Goodbye
Letter documentation or Insurer Letter), pertaining to the related Mortgage
Loans including all documents, records and reports relating to each reporting
group or category in which such Mortgage Loans are aggregated for purposes
of accounting or reporting through the related Servicing Transfer Date are
and
shall at all times remain the property of the Seller.
With
respect to each Mortgage Loan Package, unless otherwise specified in the
Servicing Transfer Instructions, within two (2) Business Days following the
related Servicing Transfer Date, the Seller shall be obligated to transfer
to
the Purchaser or its designee in an orderly manner and in accordance with the
Servicing Transfer Instructions, copies of the Data (as defined below) held
by
it, and the originals or images, as specified in this Agreement, of all
documents required to be contained in the Mortgage File and other reports as
outlined in the Servicing Transfer Instructions.
The
Data
to be transferred to the Purchaser or its designee shall include, but shall
not
be limited to, the books, records, updates, statements, documents, files, and
other information and data set forth in the Servicing Transfer Instructions
(the
“Data”) and shall be submitted in accordance with the Servicing Transfer
Instructions.
Section
8.05. Preparation
of Forms 1098 and 1099
With
respect to each Mortgage Loan Package, the Seller shall prepare and distribute
to each Mortgagor, in the name of the Seller, forms required by applicable
law
relating to interest paid by the Mortgagors on the related Mortgage Loans and,
to the extent that monies are paid to the Mortgagors in respect of escrow
accounts, forms relating to interest paid to the Mortgagors, with respect to
periods prior to and including the related Servicing Transfer Date. The
Purchaser or its designee shall prepare and distribute to each Mortgagor in
the
name of the Purchaser forms relating to interest paid by or to such Mortgagors
on the related Mortgage Loan with respect to periods after the related Servicing
Transfer Date.
ARTICLE
IX
TERMINATION
Section
9.01. Termination.
The
respective obligations and responsibilities of the Seller, as interim servicer,
shall terminate upon (a) the distribution to the Purchaser of the final
payment or liquidation with respect to the last Mortgage Loan; (b) 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, (c) the related Servicing Transfer Date or (d) by
mutual consent of the Seller and the Purchaser in writing. Upon written request
from the Purchaser in connection with any such termination (other than with
respect to a termination of this Agreement under clause (c) above), the
Seller 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 Purchaser’s sole expense. The Seller agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Seller’s
responsibilities and rights hereunder as servicer, including, without
limitation, the transfer to such successor for administration by it of all
cash
amounts which shall at the time be credited by the Seller to the Custodial
Account or Escrow Account or thereafter received with respect to the Mortgage
Loans.
54
Notwithstanding
and in addition to the foregoing, in the event that a Mortgage Loan (i) becomes
delinquent for a period of ninety (90) days or more (a “Delinquent Mortgage
Loan”) or (ii) becomes an REO Property, the Purchaser may, at its option,
terminate this Agreement with respect to such Delinquent Mortgage Loan or REO
Property upon twenty (20) days’ written notice to the Seller; provided that upon
termination of this Agreement with respect to such Delinquent Mortgage Loan
or
REO Property the Purchaser shall reimburse the Seller for all outstanding
Servicing Advances or Servicing Fees related to such Delinquent Mortgage
Loan.
ARTICLE
X
RECONSTITUTION
OF MORTGAGE LOANS
Section
10.01. Reconstitution
of Mortgage Loans.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, during the related Interim Servicing Period, on one or more dates (each,
a “Reconstitution
Date”)
at the
Purchaser’s sole option, the Purchaser may effect a sale (each, a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
(a) Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “Xxxxxx
Mae Transfer”);
or
(b) Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
(c) one
or
more third party purchasers in one or more Whole Loan Transfers; or
(d) one
or
more trusts or other entities to be formed as part of one or more Securitization
Transfers.
The
Purchaser shall use its best efforts to provide notice to the Seller of each
such Reconstitution no later than fifteen (15) calendar days prior to the
related Reconstitution Date, but, in any event, shall provide such notice to
the
Seller no later than ten (10) calendar days prior to the related
Reconstitution Date.
The
Seller agrees to execute in connection with any Agency Transfer, any and all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may be) and any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transfer, a pooling and servicing agreement in form and substance
reasonably acceptable to the parties or an Assignment, Assumption and
Recognition Agreement substantially in the form attached hereto as Exhibit D
(collectively, the agreements referred to herein are designated, the
“Reconstitution
Agreements”),
together with an opinion of counsel with respect to such Reconstitution
Agreements.
55
With
respect to each Whole Loan Transfer and each Securitization Transfer entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to restate the
representations and warranties set forth in Section 3.01 of this Agreement
as of the related Reconstitution Date, to restate the representations and
warranties set forth in Section 3.02 of this Agreement as of the related
Closing Date and to represent and warrant, as of the related Reconstitution
Date, that during the related Interim Servicing Period the Seller has serviced
the Mortgage Loans in accordance with this Agreement. The Seller shall provide
to such servicer or issuer, as the case may be, and any other participants
or
purchasers in such Reconstitution: (i) any and all information and
appropriate verification of information which may be reasonably available to
the
Seller or its Affiliates, whether through letters of its auditors and counsel
or
otherwise, as the Purchaser or any such other participant shall reasonably
request; (ii) such additional opinions of counsel, letters from auditors,
and certificates of public officials or officers of the Seller as are reasonably
believed necessary by the Purchaser or any such other participant; and
(iii) to execute, deliver and satisfy all conditions set forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution Agreement
in
substantially the form attached hereto as Exhibit F.
Moreover, the Seller agrees to cooperate with all reasonable requests made
by
the Purchaser to effect such Reconstitution. The Seller shall indemnify the
Purchaser, each Affiliate of the Purchaser participating in the Reconstitution
and each Person who controls the Purchaser or such Affiliate and their
respective present and former directors, officers, employees and agents, and
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain in any way
related to any information provided by or on behalf of the Seller regarding
the
Seller or any affiliated servicer, the Seller’s or any affiliated servicer’s
servicing practices or performance or the Underwriting Standards set forth
in
any offering document prepared in connection with any Reconstitution (the
“Seller
Information”).
For
purposes of the previous sentence, “Purchaser” shall mean the Person then acting
as the Purchaser under this Agreement and any and all Persons who previously
were “Purchasers” under this Agreement. In connection with any Reconstitution,
the Purchaser shall execute an Indemnification and Contribution Agreement
substantially in the form of Exhibit F
attached
hereto, which in any case, shall provide that the Purchaser shall indemnify
the
Seller and each Person who controls the Seller and its directors, officers,
employees and agents, and hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that each
of
them may sustain in any way related to any information, other than (i) the
Seller Information or (ii) any information regarding the Mortgage Loans set
forth in any offering document prepared in connection with any Reconstitution
that is derived from loan-level information provided by the Seller to the
Purchaser, the related depositor or any of their Affiliates, set forth in any
offering document prepared in connection with any Reconstitution.
56
The
Purchaser shall reimburse the Seller for any and all out-of-pocket expenses,
costs and fees, including reasonable attorney’s fees, incurred by the Seller in
response to requests for information or assistance under this Section, other
than such out-of-pocket expenses, costs and fees, including reasonable
attorney’s fees, incurred by the Seller in connection with fulfilling its
obligations hereunder with respect to servicing and administering the related
Mortgage Loans. All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and shall continue to
be
serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Successor
to the Seller.
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Section 7.04 or 9.01, the Purchaser shall (i) succeed to
and assume all of the Seller’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 7.05 hereof and which shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of
the
Seller under this Agreement. In connection with such appointment and assumption,
the Purchaser may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as the Purchaser and such successor shall
agree. In the event that the Seller’s duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
Sections, the Seller shall discharge such duties and responsibilities during
the
period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which
it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition
of
its successor. The resignation or removal of the Seller pursuant to the
aforementioned Sections shall not become effective until a successor shall
be
appointed pursuant to this Section and shall in no event relieve the Seller
of
the representations and warranties made pursuant to Sections 3.01 and 3.02,
the remedies available under Section 3.03 or the indemnification
obligations of the Seller pursuant to Section 7.01.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Seller or this Agreement pursuant to Section 7.04, 7.05
or 9.01 shall not affect any claims that the Purchaser may have against the
Seller arising prior to any such termination or resignation.
The
Seller shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Seller. Upon appointment of successor servicer to the Seller,
the Seller shall be reimbursed for unrecovered Servicing Advances and unpaid
Servicing Fees which would otherwise have been recovered by the Seller pursuant
to this Agreement but for the appointment such successor servicer.
57
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
Section
11.02. Amendment.
This
Agreement may be amended or supplemented from time to time by written agreement
executed by the Purchaser and the Seller.
Section
11.03. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the Mortgaged Properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Seller
at
the Seller’s expense on direction of the Purchaser.
Section
11.04. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to its conflict of law provisions, except
to
the extent preempted by Federal law. The obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
(i) if
to the
Seller:
Wachovia
Mortgage Corporation
000
Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
58
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxx Xxxxxx
Facsimile:
(000) 000-0000
(ii) if
to the
Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx - Servicing Oversight
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax:
000-000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
1585
Broadway, 00xx
Xxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
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
11.06. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
59
Section
11.07. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
11.08. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(iii) references
herein to “Articles,” “Sections,” Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a
reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder,” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(vi) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(vii) headings
of the Articles and Sections in this Agreement are for reference
purposes only and shall not be deemed to have any substantive
effect.
Section
11.09. Reproduction
of Documents.
60
This
Agreement and all documents relating thereto, including, without limitation,
(i) consents, waivers and modifications which may hereafter be executed,
(ii) documents received by any party at the closing, and
(iii) financial statements, certificates and other information previously
or hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the
original itself in any judicial or administrative proceeding, whether or not
the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile
or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10. Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Each of the Purchaser and the Seller shall employ
proper procedures and standards designed to maintain the confidential nature
of
such information and the terms of this Agreement, except to the extent:
(a) disclosure of such information and terms 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) 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 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.
Section
11.11. Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected
(i) with respect to MERS Mortgage Loans, at the Purchaser’s expense and
(ii) with respect to Mortgage Loans that are not MERS Mortgage Loans, at
the Seller’s expense, in each case, in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole
option.
Section
11.12. Assignment
by Purchaser.
The
Purchaser shall have the right, upon notice to the Seller, to assign, in whole
or in part, its interest under this Agreement with respect to some or all of
the
Mortgage Loans, and designate any Person to exercise any rights of the Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit D
hereto,
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans; provided,
however, that, in no event shall there be any more than three
(3) ”Purchasers” with respect to any Mortgage Loan Package. In no event
shall the Purchaser sell a partial interest in any Mortgage Loan without the
prior written consent of the Seller, which consent may be granted or withheld
in
the Seller’s sole discretion. All references to the Purchaser in this Agreement
shall be deemed to include its assignee or designee.
61
Section
11.13. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Seller shall
be
rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14. Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 7.05, this Agreement shall inure
to
the benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns.
Section
11.15. Entire
Agreement.
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or any
of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement and the related Purchase Price
and
Terms Letter set forth the entire understanding between the parties hereto
and
shall be binding upon all successors of all of the parties. In the event of
any
inconsistency between a Purchase Price and Terms Letter and this Agreement,
this
Agreement shall control.
Section
11.16. No
Solicitation.
From
and
after the related Closing Date, except as provided below, the Seller agrees
that
it will not take any action or permit or cause any action to be taken by any
of
its agents or Affiliates, or by any independent contractors on the Seller’s
behalf, in any manner to solicit the borrower or obligor under any Mortgage
Loan
to refinance the Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on the
related Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that the following promotions or solicitations undertaken by the Seller or
any
Affiliate of the Seller shall not be prohibited under this Section 11.16:
(i) promotions or solicitations that are directed to the general public at
large or segments thereof, provided that no segment shall consist primarily
of
the borrowers or obligors under the Mortgage Loans, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements; (ii) responding to
Mortgagor requests for pay-off information and regarding other bank or financial
products or services; and (iii) promotions or solicitations to any
Mortgagor for any other bank or financial products or services, unless such
promotions or solicitations are for a prepayment of a Mortgage
Loan.
62
Section
11.17. Costs.
The
Purchaser shall pay any commissions due its salesmen, the expenses of its
accountants and attorneys and the expenses and fees of any broker retained
by
the Purchaser with respect to the transactions covered by this Agreement. To
the
extent not otherwise provided herein, all other costs and expenses incurred
in
connection with the transfer and delivery of the Mortgage Loans, including,
without limitation, fees for recording intervening assignments of mortgage
and
Assignments of Mortgage, the cost of obtaining tax service contracts and the
legal fees and expenses of its attorneys shall be paid by the Seller. The Seller
shall be responsible for causing the recordation of all Assignments of Mortgage
and all intervening assignments of mortgage, as applicable.
Section
11.18. Protection
of Mortgagor Personal Information.
Each
of
the Purchaser and the Seller agree that it (i) shall comply with any
applicable laws and regulations regarding the privacy and security of Mortgagor
Personal Information, (ii) shall not use Mortgagor Personal Information in
any manner inconsistent with any applicable laws and regulations regarding
the
privacy and security of Mortgagor Personal Information, (iii) shall not
disclose Mortgagor Personal Information to third parties except at the specific
written direction of the other; provided,
however,
that
the Purchaser and the Seller may disclose Mortgagor Personal Information to
third parties in connection with secondary market transactions to the extent
not
prohibited by applicable law or to the extent required by a valid and effective
subpoena issued by a court of competent jurisdiction or other governmental
body,
(iv) shall maintain adequate physical, technical and administrative
safeguards to protect Mortgagor Personal Information from unauthorized access
and (v) shall immediately notify the other of any actual or suspected
breach of the confidentiality of Mortgagor Personal Information.
Section
11.19. Special
Reporting.
With
respect to each Mortgage Loan, following the related Servicing Transfer Date,
the Purchaser shall use reasonable efforts to furnish to the Seller within
a
reasonable timeframe a loan level electronic tape (in a form reasonably
acceptable to the Seller) containing such data fields and elements requested
by
the Seller and reasonably available to the Purchaser (whether maintained by
the
Purchaser or any successor servicer to the Seller), to monitor such repurchased
Mortgage Loans for quality control purposes and to complete such reports with
respect to such repurchased Mortgage Loans as may be necessary to comply with
OCC, regulatory, and community obligations of the Seller and its Affiliates.
The
Seller shall provide defined data requirements and will bear, at its sole
expense, any additional programming needed for the Purchaser to produce and
compile data or reports as may be mutually agreed upon by the Purchaser and
the
Seller. Upon the Seller’s reasonable request and at the Seller’s expense, the
Purchaser shall also use reasonable efforts to prepare and furnish (or cause
any
successor servicer to the Interim Servicer to prepare and furnish) to the Seller
the delinquency reports and other reports requested by the Seller as set forth
above. If applicable law now, or at any time in the future, limits the ability
of the Purchaser to provide the tape or any specific data to the Seller, the
Purchaser shall cooperate with the Seller to investigate whether alternate
methods for providing such information to the Seller are available. The parties
hereto agree that the inability of the Purchaser to provide any of the data,
reports or other information requested by the Seller pursuant to this Section
shall in no event constitute a breach of the terms of this Agreement or give
rise to any cause of action in favor of the Seller against the Purchaser in
connection with such inability.
[SIGNATURE
PAGE TO FOLLOW]
63
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC., as Purchaser | ||
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ | ||
|
WACHOVIA MORTGAGE CORPORATION,
as Seller
|
||
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ |
[Signature
Page to First Amended and Restated Seller’s Purchase,
Warranties
and Interim Servicing Agreement, dated as of June 1, 2006]
Exhibit A-1
Contents
of Mortgage File
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Section 2.04 of the First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of ___________________ without
recourse,” and signed in the name of the Seller by an authorized officer, with
all intervening endorsements showing a complete chain of title from the
originator to the Seller. If the Mortgage Loan was acquired by the Seller in
a
merger, the endorsement must be by “[Seller], successor by merger to the [name
of predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the endorsement must be by “[Seller]
formerly known as [previous name]”. If the original note is unavailable, seller
will provide an affidavit of lost note (in form acceptable to the Purchaser)
stating that the original Mortgage Note was lost or destroyed, together with
a
copy of such Mortgage Note and indemnifying the Purchaser against any and all
claims arising as a result of any person or entity claiming they are the holder
of the note or that the note has been paid off and returned.
2. A
true
certified copy, certified by the [title insurer], of the applicable First Lien
Loan.
3. Except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the [title
insurer], of the original Mortgage together with a certificate of the Seller
certifying that the original Mortgage has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN of the Mortgage Loans and either
language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon, or a copy of
the
Mortgage certified by the public recording office in which such Mortgage has
been recorded.
4. The
original or certified to be a true copy or if in electronic form identified
on
the Mortgage Loan Schedule, the certificate number, certified by the Seller,
of
the related Primary Mortgage Insurance Policy, if required.
5. In
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment of Mortgage, from the Seller in accordance with Purchaser’s
instructions, which assignment shall, but for any blanks requested by the
Purchaser, be in form and substance acceptable for recording, or a copy
certified by the Seller as a true and correct copy of the original Assignment
which has been sent for recordation. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
must be by “[Seller] formerly known as [previous name]”.
A-1-1
6. With
respect to Mortgage Loans that are not Co-op Loans, the original policy of
title
insurance, including riders and endorsements thereto, or if the policy has
not
yet been issued, a written commitment or interim binder or preliminary report
of
title issued by the title insurance or escrow company.
7. Originals
of all recorded intervening Assignments of Mortgage, or copies thereof,
certified by the public recording office in which such Assignments of Mortgage
have been recorded showing a complete chain of title from the originator to
the
Seller, with evidence of recording thereon, or a copy thereof certified by
the
public recording office in which such Assignment of Mortgage has been recorded
or, if the original Assignment of Mortgage has not been returned from the
applicable public recording office, a true certified copy, certified by the
[title insurer] of the original Assignment of Mortgage together with a
certificate of the [title insurer] certifying that the original Assignment
of
Mortgage has been delivered for recording in the appropriate public recording
office of the jurisdiction in which the Mortgaged Property is
located.
8. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the [title insurer], of such
original document together with certificate of Seller certifying the original
of
such document has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is
located.
9. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
10. With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of such Co-op Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment thereof by
Seller; (ii) the stock certificate together with an undated stock power
relating to such stock certificate executed in blank; (iii) the recognition
agreement in substantially the same form as standard a “AZTECH” form;
(iv) copies of the financial statement filed by the originator as secured
party and, if applicable, a filed UCC-3 Assignment of the subject security
interest showing a complete chain of title, together with an executed UCC-3
assignment of such security interest by the Seller in a form sufficient for
filing.
A-1-2
11. The
original of any guarantee executed in connection with the Mortgage
Note.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate for
all
of the Mortgage Loans indicating that the documents were delivered for
recording.
X-0-0
Xxxxxxx X-0
Contents
of Servicing File
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items, which shall be available for inspection by the
Purchaser:
1. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
2. Residential
loan application.
3. Uniform
underwriter and transmittal summary (Xxxxxx Xxx Form 1008) or reasonable
equivalent.
4. Credit
report on the mortgagor.
5. Business
credit report, if applicable.
6. Residential
appraisal report and attachments thereto.
7. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s Underwriting
Standards.
8. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
the Underwriting Standards.
9. Photograph
of the Mortgaged Property (may be part of appraisal).
10. Survey
of
the Mortgaged Property, if any.
11. Sales
contract, if applicable.
12. If
available, termite report, structural engineer’s report, water portability and
septic certification.
13. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
14. Any
ground lease, including all amendments, modifications and supplements
thereto.
15. Any
other
document required to service the Mortgage Loans.
A-2-1
Exhibit
B
Form
of Custodial Account Letter Agreement
__________________
, 200_
To:
As
“Seller” under the First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of June 1, 2006
(the “Agreement”),
we
hereby authorize and request you to establish an account, as a Custodial Account
pursuant to Section 4.03 of the Agreement, to be designated as “Wachovia
Mortgage Corporation, in trust for the Purchaser, owner of various whole loan
series - principal and interest”. All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Seller. This letter is submitted
to you in duplicate. Please execute and return one original to us.
|
WACHOVIA MORTGAGE CORPORATION,
as SELLER
|
||
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ |
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number ______________, at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ |
B-1
Exhibit
C
Form
of Escrow Account Letter Agreement
_____________________,
200_
To:
As
“Seller” under the First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of June 1, 2006
(the “Agreement”),
we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 4.05 of the Agreement, to be designated as “Wachovia
Mortgage Corporation, in trust for the Purchaser, owner of various whole loan
series, and various Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. This letter is submitted
to
you in duplicate. Please execute and return one original to us.
|
WACHOVIA MORTGAGE CORPORATION,
as SELLER
|
||
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ |
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number ______________, at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
| By: _______________________ | ||
| Name: _____________________ | ||
| Title: ______________________ |
C-1
Exhibit D
Form
of Assignment, Assumption and Recognition Agreement
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of _________, between [Purchaser], a [_____________] corporation (the
“Assignor”), ______________________, a ________ corporation (the “Assignee”),
and Wachovia Mortgage Corporation, a North Carolina corporation (the
“Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those
certain mortgage loans listed on Exhibit A attached hereto (the “Mortgage
Loans”); and (b) the
First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement dated as of June 1, 2006,
but only to the extent of the Mortgage Loans (the “Purchase Agreement”). For
purposes of this Assignment Agreement, the term “Purchase Agreement” includes
any separate Assignment and Conveyance pursuant to which Seller and Assignor
effectuated the purchase and sale of any Mortgage Loan following the execution
and delivery of the First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement dated as of June 1,
2006.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on Exhibit A attached hereto and
are not the subject of this Assignment Agreement.
2. Each
of
the Seller and the Assignor represent and warrant to the Assignee that
(a) the copy of the Purchase Agreement, attached hereto as Exhibit B,
provided to the Assignee, is a true, complete and accurate copy of the Purchase
Agreement, (b) the Purchase Agreement is in full force and effect as of the
date hereof, (c) the provisions thereof have not been waived, amended or
modified in any respect, nor have any notices of termination been given
thereunder, (d) the Purchase Agreement contains all of the terms and
conditions governing the sale of the Mortgage Loans by Seller to Assignor and
the purchase of the Mortgage Loans by Assignor from Seller; provided,
however,
that
the date of purchase and sale and the amount of payment for the Mortgage Loans
may be set out in a Purchase Price and Terms Letter, as defined in the Purchase
Agreement, and (e) Seller sold, conveyed and transferred each Mortgage Loan
to Assignor pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee and the
Seller that:
(a) As
of the
date hereof, the Assignor is not in default under the Purchase
Agreement;
D-1
(b) The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase Agreement, free from any and all claims and
encumbrances arising out of the Assignor’s ownership thereof, and the Mortgage
Loans, as well as the Purchase Agreement, upon the transfer thereof to the
Assignee as contemplated herein, shall be free and clear of all such liens,
claims and encumbrances or any lien claim or encumbrance arising out of the
ownership of the Mortgage Loans by any person at any time after Assignor first
acquired any Mortgage Loan from the Seller;
(c) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Purchase Agreement or the Mortgage Loans;
(d) The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under or defaults under, the Purchase Agreement, or the Mortgage
Loans;
(e) The
Assignor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
(f) The
Assignor has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(g) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(h) The
Assignor has paid the purchase price for the Mortgage Loans and has satisfied
any conditions to closing required of it under the terms of the Purchase
Agreement.
D-2
4. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller that:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor and the
Assignee that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation, and has all requisite power and authority to service the Mortgage
Loans;
(b) The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Assignment Agreement has been
duly executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law;
D-3
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
(d) As
of the
date hereof, the Seller is not in default under the Purchase Agreement;
and
(e) No
event
has occurred or has failed to occur, during the period commencing on date on
which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth in
Section 3.01 of the Purchase Agreement untrue if such representations and
warranties were made with respect to the Mortgage Loans effective as of the
date
hereof.
6. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance from
and after the date hereof of the Assignor’s obligations with respect to the
Mortgage Loans.
7. Notice
Addresses.
(a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
________________
________________
________________
Attention:
________________
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
[_____________________________]
[_____________________________]
[_____________________________]
[_____________________________]
Attention:
_______________
D-4
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxx Xxxxxx
8. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of laws principles) and
the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
9. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
10. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
11. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Purchase Agreement by the Assignor.
12. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or the
Assignor unless assigned by separate written instrument.
13. For
the
purpose for facilitating the execution of this Assignment Agreement as herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be
one
and the same instrument.
[signatures
on following page]
D-5
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
[__________________________________]
Assignor
By:________________________________
Name:
Title:
___________________________________
Assignee
By:_________________________________
Name:
Title:
Wachovia
Mortgage Corporation
Seller
By:_________________________________
Name:
Title:
D-6
Exhibit E
Form
of Assignment and Conveyance
On
this
____ day of ________, 200_, Wachovia Mortgage Corporation (“Wachovia”)
as the
Seller under that certain First
Amended and Restated
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of June 1, 2006
(the “Agreement”),
by
and between Wachovia and Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”)
does
hereby sell, transfer, assign, set over and convey to the Purchaser under the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of Wachovia in and to the Mortgage Loans listed
on
the Mortgage Loan Schedule attached hereto as Exhibit A,
together with the Mortgage Files and all rights and obligations arising under
the documents contained therein. Pursuant to Section 2.06 of the Agreement,
Wachovia has delivered to the Purchaser the documents for each Mortgage Loan
to
be purchased as set forth therein. The contents of each Servicing File required
to be retained by Wachovia to service the Mortgage Loans during the related
Interim Servicing Period pursuant to the Agreement and thus not delivered to
the
Purchaser are and shall be held in trust by Wachovia, for the benefit of the
Purchaser as the owner thereof. Wachovia’s possession of any portion of the
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan during the related Interim
Servicing Period pursuant to the Agreement, and such retention and possession
by
Wachovia 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 Wachovia shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by Wachovia at the will of the Purchaser
in
such custodial capacity only.
With
respect to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto as Exhibit A,
the
term Standard & Poor’s Glossary, as used in the Agreement, shall refer
to Version __ of the Standard & Poor’s LEVELS® Glossary.
[With
respect to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto as Exhibit A, the Servicing Transfer Date shall be
_____________.]
E-1
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
WACHOVIA
MORTGAGE CORPORATION
By:______________________________
Name:
Title:
E-2
Exhibit F
Form
of Indemnification and Contribution Agreement
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”),
dated
as of [DATE], among [DEPOSITOR] (the “Depositor”),
a
_______ corporation (the “Depositor”),
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation (“Xxxxxx”)
and
Wachovia Mortgage Corporation, a North Carolina corporation, as seller and
as
servicer (the “Seller”).
W
I T N E
S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [DATE], and the Prospectus Supplement to the Prospectus,
dated
[_____] (the “Prospectus
Supplement”)
and
the Term Sheet, dated [______], (the “Term
Sheet”)
relating to [________] (the “Certificates”)
to be
issued pursuant to a Pooling and Servicing Agreement, dated as of [DATE] (the
“P&S”),
among
the Depositor, as depositor, [_________], as master servicer and securities
administrator (the “Servicer”),
and
[_______], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and [__________]
(the “Underwriter”)
to
enter into the Underwriting Agreement, dated [________] (the “Underwriting
Agreement”),
between the Depositor and the Underwriter, and [_____________] (the
“Initial
Purchaser”)
to
enter into the Certificate Purchase Agreement, dated [DATE] (the “Certificate
Purchase Agreement”),
between the Depositor and the Initial Purchaser, Seller has agreed to provide
for indemnification and contribution on the terms and conditions hereinafter
set
forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage
Loans”)
pursuant to a First Amended and Restated Seller’s Purchase, Warranties and
Interim Servicing Agreement, dated as of June 1, 2006 (the “Sale
and Servicing Agreement”);
and
WHEREAS,
pursuant to Section 2.07 of the Reg AB Addendum, the Seller has agreed to
indemnify the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser and
their respective present and former directors, officers, employees and
agents.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser and their respective Affiliates and their
respective present and former directors, officers, employees and agents and
each
person, if any, who controls the Depositor, Xxxxxx, the Underwriter, the Initial
Purchaser or such Affiliates within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the “1933
Act”),
or
Section 20 of the Securities Exchange Act of 1934, as amended (the “1934
Act”),
against any and all losses, claims, damages or liabilities, to which they or
any
of them may become subject under the 1933 Act, the 1934 Act or other federal
or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based in whole or in part upon any material non-compliance with the
requirements of Regulation AB Items 1108, 1110, 1111 (it being understood that
no representation is made by Seller with respect to information regarding the
mortgage loans as aggregated by the Depositor), 1117 or 1119, or arise out
of or
are based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement or the
Term
Sheet or any omission or alleged omission to state in the Prospectus Supplement
or the Term Sheet a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement or the Term Sheet (provided that Xxxxxx has provided
the
Seller with reasonable advanced notice of such amendment or supplement and
Seller if afforded no fewer than five (5) Business Days to review and, if
required, update, the Seller Information stated therein) and agrees to reimburse
the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser or such Affiliates
and each such officer, director, employee, agent and controlling person promptly
upon demand for any legal or other expenses reasonably incurred by any of them
in connection with investigating or defending or preparing to defend against
any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such case only to the
extent that any such loss, claim, damage, liability or action arises out of,
or
is based upon, any untrue statement or alleged untrue statement or omission
or
alleged omission set forth in or omitted from the Seller Information. The
foregoing indemnity agreement is in addition to any liability which Seller
may
otherwise have to the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser
their Affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser or
their
respective Affiliates.
F-1
(b) Xxxxxx
agrees to indemnify and hold harmless the Seller and its present and former
directors, officers, employees and agents and each person, if any, who controls
the Seller within the meaning of either Section 15 of the 1933 Act, or Section
20 of the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
1933
Act, the 1934 Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based in whole or in part
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus Supplement or the Term Sheet or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading, or any such untrue statement or omission or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement or the Term Sheet, or arise out of
or
are based in whole or in part upon any material non-compliance with the
requirements of Regulation AB (17 CFR 229.1100 et seq.), and Xxxxxx shall in
each case reimburse the Seller and each such officer, director, employee, agent
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided,
however,
that
Xxxxxx shall be liable in any such case only to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission set forth
in or omitted from the information set forth in the Prospectus Supplement or
the
Term Sheet or any amendment of or supplement to either the Prospectus Supplement
or the Term Sheet other than (i) the Seller Information or (ii) any information
regarding the Mortgage Loans set forth in the Prospectus Supplement or the
Term
Sheet or any amendment of or supplement to either that is derived from
loan-level information provided by the Seller to the Purchaser, the Depositor
or
any of their Affiliates. The foregoing indemnity agreement is in addition to
any
liability which Xxxxxx may otherwise have to the Seller or any such director,
officer, employee, agent or controlling person of the Seller.
F-2
As
used
herein:
“Seller
Information”
means
any information relating to Seller, the Mortgage Loans and/or the underwriting
guidelines relating to the Mortgage Loans provided by the Seller for inclusion
in the Prospectus Supplement or the Term Sheet.
(c) Promptly
after receipt by any indemnified party under this Section
1
of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section
1,
notify
the indemnifying party in writing of the claim or the commencement of that
action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section
1
except
to the extent it has been materially prejudiced by such failure; and
provided,
further,
however,
that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section
1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, except as provided in the following paragraph,
the indemnifying party shall not be liable to the indemnified party under this
Section
1
for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing; (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is necessary or appropriate for such
indemnified party to employ separate counsel; or (iii) the indemnifying party
has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, the indemnifying party shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to local
counsel) at any time for all such indemnified parties.
F-3
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section
1,
shall
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If
the
indemnification provided for in this Section
1
is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(e) The
indemnity and contribution agreements contained in this Section
1
shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser, their respective Affiliates, directors,
officers, employees or agents or any person controlling the Depositor, Xxxxxx,
the Underwriter, the Initial Purchaser or any such Affiliate, and (iii)
acceptance of and payment for any of the Offered Certificates or Private
Certificates.
2. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and confirmed
by mail to Wachovia Mortgage Corporation, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Fax: (000) 000-0000,
with a copy to Wachovia Mortgage Corporation, 0000 Xxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxx Xxxxxx, Fax: (000) 000-0000;
if
sent to Xxxxxx, xxxx be mailed, delivered or faxed or emailed and confirmed
by
mail to Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx, Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to (i) Xxxxx X. Xxx, Xxxxxx
Xxxxxxx - Legal Counsel, Securities, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Email: xxxxx.x.xxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx - SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if to the
Depositor, will be mailed, delivered or telegraphed and confirmed to
[___________]; Attention: [________]; or if to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to [_________]; or if to the Initial
Purchaser, will be mailed, delivered or telegraphed and confirmed to
[_________]; Attention: [__________].
F-4
3. Miscellaneous.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. This Agreement may be executed in counterparts, each
of
which when so executed and delivered shall be considered an original, and all
such counterparts shall constitute one and the same instrument. Capitalized
terms used but not defined herein shall have the meanings provided in the
P&S.
[SIGNATURE
PAGE FOLLOWS]
F-5
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this ____ day
of
_____, 200__.
| [DEPOSITOR] | ||
| By: _____________________________________ | ||
| Name: | ||
| Title: | ||
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | ||
| By: _____________________________________ | ||
| Name: | ||
| Title: | ||
| WACHOVIA MORTGAGE CORPORATION | ||
| By: _____________________________________ | ||
| Name: | ||
| Title: |
F-6
Exhibit G
Servicing
Transfer Instructions
Pre-Boarding
Requirements
To
be
provided within 3 business days after the Funding Date.
Seller
will provide Purchaser a payee code cross-reference file for loans associated
with the transfer portfolio (in Excel file format unless otherwise
listed):
|
·
|
Tax
|
|
·
|
Hazard
|
|
·
|
Flood
|
|
·
|
PMI/MIP
|
|
·
|
Optional
Insurance
|
Seller
will provide Purchaser with the following:
|
·
|
Electronic
master data files of all loans included in the sale to include all
of the
fields contained in Exhibit A
to
these Transfer Instructions
|
|
·
|
CPI
- P4TB - Transfer Trial Balance
(paper)
|
|
·
|
CPI
- P4TB2 - Summary Transfer Trial Balance
(paper)
|
|
·
|
CPI
- P309 - Master Record Information and Ledger
(paper)
|
|
·
|
CPI
- P4SB - Bankruptcy Trial Balance
(paper)
|
|
·
|
CPI
- P4FT - Foreclosure Trial Balance
(paper)
|
|
·
|
CPI
- P4CC - Loan Number Cross Reference
(paper)
|
|
·
|
CPI
- P1LD - Listing of Draft Loans
(paper)
|
|
·
|
CPI
- P4BS - Buydown Loan Listing
(paper)
|
|
·
|
CPI
- P4GR - GPM Loan Listing (paper)
|
|
·
|
CPI
- P4BC - ARM Loan Listing (paper)
|
|
·
|
CPI
- P4TN - Pending Payoff Report
(paper)
|
G-1
|
·
|
CPI
- P2TF - Pending Assumption Report
(paper)
|
|
·
|
CPI
- P5XS - Service Release Suspense Report
(paper)
|
|
·
|
CPI
- P10S - Mortgage Insurance List
(paper)
|
|
·
|
CPI
- P1LF - Flood Insurance Listing
(paper)
|
|
·
|
CPI
- P10P2 - Tax Line Detail Listing
(paper)
|
|
·
|
CPI
- P10P3 - Hazard Insurance Line Detail Listing
(paper)
|
|
·
|
CPI
- P1ET - Restricted Escrow List
(paper)
|
|
·
|
CPI
- P4CV - Loans With Force Placed Insurance
(paper)
|
|
·
|
Open
Items Reports - 30 days out from transfer date (in Excel file format
unless otherwise listed):
|
a. Tax
b. Hazard
c. PMI/MIP
Notifications
1. Borrower
In
accordance with Section 6 of the Real Estate Settlement Procedures Act
(RESPA) (12 U.S.C. 2605), notice of the transfer of loans must be sent at least
15 days prior to the Transfer Date. Seller must obtain Purchaser’s approval
of the transfer notification prior to the mailing. Seller will send a sample
of
the good-bye letter to Purchaser at the same xxxx Xxxxxx mails to the borrowers.
The transfer notification must contain the following information:
|
·
|
Effective
date of transfer
|
|
·
|
Address
to send payment and written
inquiries:
|
|
·
|
Company
Name
|
|
·
|
Address
1
|
|
·
|
Address
2
|
|
·
|
City,
State, Zip
|
G-2
|
·
|
The
Customer Service toll free number is [800 Number] for borrower inquires.
Customer Service hours are [day of week] through [day of week] from
[time]
to [time] in the [time zone] Time
Zone.
|
|
·
|
Notify
borrower that an annual Short-Year statement reflecting interest
collected
and escrow disbursement made will be provided from Seller for the
period
up to Transfer Date and from Purchaser for the period after the Transfer
Date.
|
|
·
|
Notify
borrowers using an automatic draft to pay their monthly payment (ACH)
that
the draft will [continue or
discontinue].
|
|
·
|
Notify
borrowers on a bi-weekly payment program that this service will [continue
or discontinue] and they will receive additional information from
Purchaser.
|
2. Hazard
Insurance Company/Agents
|
·
|
Seller
will send notifications to each applicable insurance company and/or
agent
of the transfer of the mortgage loans to Purchaser with instructions
to
deliver all future notices to Purchaser and to affect the necessary
notifications to the loss payee clause
to:
|
[Purchaser
Name]
Its
Successors and/or Assigns
Address
City,
State, Zip
3. PMI
and
Optional Insurance Companies
|
·
|
Seller
will send notifications to each applicable insurance company and/or
agent
of the transfer of the mortgage loans to Purchaser with instructions
to
deliver all future notices to Purchaser
at:
|
[Purchaser
Name]
Address
1
Address
2
City,
State, Zip
4. Tax
Service Fee
|
·
|
Seller
will allow Purchaser to net the Tax Service Fee from the proceeds
of the
Mortgage Loans. Purchaser shall be responsible for ordering Tax Service
Contract through their approved Tax Service Company. Purchaser’s Tax
Service Company shall notify applicable taxing authorities of such
transfer of servicing.
|
5. Flood
Service Company
G-3
|
·
|
No
later than 5 business days prior to the Transfer Date, Seller will
notify
the Flood Service (First American Flood Data Services Incorporated
- FDSI)
of the transfer of servicing to
Purchaser.
|
6. Bankruptcy
Attorneys and Trustees
|
·
|
Seller
will notify all bankruptcy attorneys and trustee of the transfer
to
Purchaser. The notice to the Trustee should also request a statement
of
account be sent to Purchaser.
|
7. Foreclosure
Attorneys
|
·
|
Seller
will notify all foreclosure attorneys of the transfer to
Purchaser.
|
8. Ground
Rents
|
·
|
Seller
will notify all ground rent owners of the transfer to
Purchaser.
|
Escrow
Administration
9. Escrow
Analysis
|
·
|
Seller
will not perform any mass escrow analysis or payment changes (with
the
exception of regularly scheduled ARM or GPM changes) after the funding
date; however, Seller may complete an individual analysis if Seller
has
knowledge that individual escrow account is not in compliance with
RESPA
regulations.
|
|
·
|
Seller
will ensure that all overages as identified by any analysis performed
by
Seller prior to the Transfer Date, have been disbursed to the borrower
in
accordance with RESPA.
|
|
·
|
No
later than twenty (20) business days after the Transfer Date, Seller
shall
deliver to Purchaser without charge a physical copy or, at Purchaser’s
expense, a microfiche of its most recent escrow analysis
data.
|
|
·
|
Seller
will issue a Short Year Annual Escrow Account Statement to borrowers
within 60 days of the Transfer Date as required by
RESPA.
|
10. Hazard/Flood
Insurance
|
·
|
Seller
will provide Purchaser within five (5) business days of transfer a
Hazard/Flood Insurance listing for each loan with premiums due and
payable
within 60 days of the Transfer
Date
|
|
·
|
Seller
will provide Purchaser within five (5) business days of transfer a
list of loans on force placed hazard/binder
coverage.
|
G-4
|
·
|
Seller
will provide Purchaser within five (5) business days of transfer a
list of loans on force placed flood/binder coverage to include, but
not
limited to, the following:
|
|
·
|
Loans
with force placed hazard and/or flood coverage will be handled in
the
following manner:
|
|
a.
|
policies
in binder stage as of the Transfer Date, shall be terminated by Seller,
except where state law prohibits.
|
|
b.
|
if
certificates have been received, coverage will be continued to the
expiration date of the policy if Purchaser’s force placed hazard insurance
company is ZC Sterling or if Purchaser’s force placed flood insurance
company is Southwest Business
Corporation.
|
|
·
|
Seller
will pay, prior to Transfer Date all insurance premiums due prior
to and
30 days subsequent to the Transfer Date where bills have been
received at least 3 business days prior to
transfer.
|
11. Loss
Drafts
|
·
|
Seller
shall provide Purchaser a listing of all loans with a loss draft
pending
with corresponding file.
|
|
·
|
Proceeds
remaining in a restricted account shall be forwarded to and be supported
by a loan level trial balance. Seller is responsible for any interest
payable on loss draft funds required by state and/or investor regulations
prior to Transfer Date.
|
12. MIP/RBP &
PMI
|
·
|
Seller
will assume responsibility for payment prior to Transfer Date of
all
MIP/RBP premiums due through the Transfer Date as well as any due
30 days after Transfer Date. If monthly premiums are paid in arrears,
it will be necessary for Seller to manually disburse and post the
transfer
month premium prior to the Transfer Date. If this is not completed
prior
to the Transfer Date, Seller will be billed for Purchaser’s costs to bring
the loans in line.
|
|
·
|
Seller
shall provide a PMI listing for each account due and unpaid within
60 days after the Transfer
Date.
|
13. Taxes
|
·
|
Seller
to provide a tax open item listing which are delinquent or due for
60 days following the Transfer Date via Excel file
format.
|
G-5
|
·
|
Seller
will ensure all loans have a tax line set up to include payee, due
date,
premium, and tax ID number and will transfer tax fee collected to
Purchaser to establish Tax Service Contract with approved Tax Service
Company.
|
|
·
|
Seller
will be responsible for payment of all property taxes and assessments
on
loans with escrow accounts that are due or will become delinquent
within
30 days of the Transfer Date where tax bills/amounts are available
and received prior to transfer.
|
|
·
|
Seller
will be responsible for any known delinquencies on non-escrowed loans
prior to the Transfer Date by advancing escrow funds for payment,
enforcing escrow requirement for future taxes due and notify the
borrower
of increased payment according to applicable state and federal
guidelines.
|
|
·
|
Seller
will provide to Purchaser a listing of all accounts where Seller
is
remitting ground rent tax.
|
Life,
A&H, Disability Insurance
|
·
|
Prior
to the Transfer Date Seller will provide copies of all master policies
for
optional insurance companies or individual certificates for all optional
insurance plan types and coverage types. Purchaser will determine
if
coverage is transferable and will notify Seller of same. Seller must
then
notify the insurance carriers if the coverage is converting and pay
the
premium current prior to the Transfer
Date.
|
|
·
|
Seller
will provide Purchaser as of the Transfer Date, the optional insurance
information with respect to insurance that will be transferred for
each
carrier.
|
Special
Loans
14. ARMs
|
·
|
Seller
to provide Purchaser a listing of all ARM loans in the
transfer.
|
|
·
|
For
each Adjustable Rate Mortgage in the sale portfolio, Seller shall
provide
the following information at Transfer Date: (i) Copies of all Notes
and Riders (including applicable modifications and addendums/exhibits);
(ii) Copies of all adjustment notifications; (iii) Copies of
payment transaction history.
|
|
·
|
For
each ARM loan having an interest rate change date within 30 days of
the Transfer Date, Seller warrants that they have made the appropriate
adjustments and notified the borrower of same in accordance with
the Note
and applicable state and federal
guidelines.
|
G-6
15. Buydowns
|
·
|
Seller
shall provide Purchaser a listing in loan number order of all buydown
accounts included in the Transfer .
|
|
·
|
Seller
is to provide a copy of each buydown schedule for each mortgage
loan.
|
|
·
|
All
buydown balances must be fully funded and, at the time of transfer,
the
balance must be equal to the calculated balance of the buydown subsidy
as
detailed in each buydown schedule.
|
16. Servicemembers
Civil Relief Act Loans
|
·
|
Seller
shall provide Purchaser a list of any loans involved in the Servicemembers
Civil Relief Act or similar state
statute.
|
Payoffs
and Partial Releases
17. Payoffs
|
·
|
Seller
will wire transfer to Purchaser any payoff proceeds received by Seller
prior to the Transfer Date and applied prior to the Transfer Date
within
two (2) business days of receipt of funds. Additionally, Seller shall
notify Purchaser of any such payoff proceeds by electronic
mail.
|
|
·
|
Seller
will either 1) endorse a payoff check to Purchaser and forward via
overnight mail or 2) wire transfer to Purchaser any payoff proceeds
received by Seller prior to the Transfer Date and unapplied as of
the
Transfer Date or received after the Transfer Date by 4:00 PM (wire
transfers shall included borrower’s name and Seller’s loan number).
Additionally, Seller shall notify Purchaser of any such payoff proceeds
by
electronic mail.
|
|
·
|
Seller
is financially responsible for any additional interest on any payoff
check
that is not forwarded to Purchaser by next-day delivery (priority
service)
after receipt. Seller will forward to Purchaser a check in the appropriate
amount upon receipt of a properly documented request. Seller shall
also be
liable to Purchaser for any additional interest due on a payoff that
Seller fails to process in a timely
manner.
|
18. Partial
Releases
|
·
|
Seller
shall coordinate with Purchaser if any requests for partial release
are
received prior to the Transfer Date and shall provide Purchaser a
listing
of all loans for which a partial release is pending, along with an
explanation for each case and all documentation received to
date.
|
G-7
19. Assumptions
|
·
|
Seller
shall provide Purchaser a listing in Seller loan number order of
all
accounts pending assumptions as of Transfer Date together with a
current
status report on each.
|
|
·
|
Seller
shall provide a listing of all pending legal name changes along with
the
appropriate documentation (i.e. quit claims, death certificates,
divorce
decrees, etc.).
|
Default
Administration
20. Delinquencies
|
·
|
With
respect to Reimbursable Advances for Delinquent Loans, Seller shall
provide Purchaser a detailed listing of each loan for which Seller
is
requesting reimbursement of an advance to include, at a minimum,
the loan
number and reason for the advance, payee and amount together with
copies
of all applicable documentation supporting each advance. Applicable
documentation will mean copies of all invoices and check copies or
payment
histories (copies from applicable working files should not be removed,
but
additional copies made and attached to detail schedule to satisfy
this
request).
|
|
·
|
Seller
shall provide Purchaser a listing of all accounts on a repayment
plan at
the Transfer Date.
|
21. Bankruptcy
|
·
|
Seller
will provide Purchaser a listing of all accounts in Bankruptcy as
of the
Transfer Date, if applicable.
|
|
·
|
Seller
shall provide separate Bankruptcy file on each
account
|
|
·
|
Seller
shall provide Purchaser with a list of all Bankruptcies requiring
action
within the 30 days immediately following the Transfer Date (i.e.
Proof of Claim or Relief from Stay
due).
|
Assignments
MERS
members
|
·
|
If
Purchaser is a MERS member, Seller will be responsible for all costs
associated with the preparation (in accordance with applicable state
and
investor requirements) and registration of all applicable Assignments
to
effect the transfer of Servicing from Seller to Purchaser. Seller
shall
utilize the Mortgage Electronic Registration System for all assignments
from Seller to Purchaser. Assignments shall be prepared in the name
of
Mortgage Electronic Registration Systems, Inc. (“MERS”) and contain a
Mortgage Identification Number
(“MIN”).
|
G-8
|
·
|
Seller
shall provide certification that MERs assignments have been properly
registered with MERs.
|
Non
- MERS members
|
·
|
If
Purchaser is not a MERs member, assignments shall be prepared with
the
language incorporating MERs, as agent for Seller, to “BLANK”. Purchaser
shall be responsible for the recording of the
assignment.
|
|
·
|
Recorded
intervening assignments shall be inventoried and packaged by loan
number
order and shipped to Purchaser via overnight delivery together with
an
electronic file containing the purchaser loan number and assignment
recording information within 5 days of
receipt.
|
Cashiering
|
·
|
On
the Servicing Transfer Date, Seller shall provide a listing of all
accounts on ACH payment draft.
|
|
·
|
On
the Servicing Transfer Date, Seller shall provide Purchaser a listing
of
all bi-weekly payment loans.
|
Final
Reports
|
·
|
The
close of business on the business day immediately prior to the Transfer
Date will be considered the Final Conversion Cutoff
Date.
|
|
·
|
Accrued
interest on escrow funds is to be posted to each applicable mortgage
loan
immediately prior to each Final Conversion Cutoff
Date.
|
|
·
|
Seller
is responsible for the preparation and mailing all IRS forms 1098
and 1099
to the Borrowers for the period from January 1st through the Final
Conversion Cutoff Date and for the reporting to the IRS for the same
period on all loans included in the
transfer.
|
|
·
|
No
payments or disbursements are to be made to or from the loans included
in
the transfer after the Final Conversion Cutoff Date as this is the
date
that files will be generated for conversion of data to Purchaser’s
system.
|
|
·
|
Seller
shall provide the following items after the Final Conversion Cutoff
Date:
|
|
a.
|
On
the first business day after the cutoff, electronic master data files
of
all loans included in the sale to include all of the Alltel fields
contained in Exhibit A
to
these Transfer Instructions.
|
G-9
|
b.
|
A
detail trial balance which reconciles to the files above to the Transfer
Coordinator or via overnight
carrier.
|
|
c.
|
Seller
shall also provide any other information requested by Purchaser reasonably
necessary to reconcile and resolve exceptions from trial conversion
(i.e.
individual screen prints, etc.)
|
|
d.
|
Seller
must provide Purchaser a payment transaction history for the period
twenty-four (24) months prior to transfer on microfiche. Written
requests
from Purchaser to Seller’s designated contact person for additional
transaction histories on a case by case basis will be filled by Seller
within 72 hours of request.
|
|
·
|
Seller
will provide Purchaser a payee code cross-reference file for loans
associated with the transfer portfolio (in Excel file format unless
otherwise listed):
|
a. Tax
b. Hazard
x. Xxxxx
d. PMI/MIP
e. Optional
Insurance
|
·
|
Seller
will provide Purchaser with the
following:
|
|
a.
|
Electronic
master data files of all loans included in the sale to include all
of the
fields contained in Exhibit A
to
these Transfer Instructions
|
|
b.
|
CPI
- P4TB - Transfer Trial Balance
(paper)
|
|
c.
|
CPI
- P4TB2 - Summary Transfer Trial Balance
(paper)
|
|
d.
|
CPI
- P309 - Master Record Information and Ledger
(paper)
|
|
e.
|
CPI
- P4SB - Bankruptcy Trial Balance
(paper)
|
|
f.
|
CPI
- P4FT - Foreclosure Trial Balance
(paper)
|
|
g.
|
CPI
- P4CC - Loan Number Cross Reference
(paper)
|
|
h.
|
CPI
- P1LD - Listing of Draft Loans
(paper)
|
|
i.
|
CPI
- P4BS - Buydown Loan Listing
(paper)
|
G-10
|
j.
|
CPI
- P4GR - GPM Loan Listing (paper)
|
|
k.
|
CPI
- P4BC - ARM Loan Listing (paper)
|
|
l.
|
CPI
- P4TN - Pending Payoff Report
(paper)
|
|
m.
|
CPI
- P2TF - Pending Assumption Report
(paper)
|
|
n.
|
CPI
- P5XS - Service Release Suspense Report
(paper)
|
|
o.
|
CPI
- P10S - Mortgage Insurance List
(paper)
|
|
p.
|
CPI
- P1LF - Flood Insurance Listing
(paper)
|
|
q.
|
CPI
- P10P2 - Tax Line Detail Listing
(paper)
|
|
r.
|
CPI
- P10P3 - Hazard Insurance Line Detail Listing
(paper)
|
|
s.
|
CPI
- P1ET - Restricted Escrow List
(paper)
|
|
t.
|
CPI
- P4CV - Loans With Force Placed Insurance
(paper)
|
|
u.
|
Open
Items Reports - 30 days out from transfer date (in Excel file format
unless otherwise listed):
|
1. Tax
2. Hazard
3. PMI/MIP
G-11
EXHIBIT
A TO SERVICING TRANSFER INSTRUCTIONS
|
FIELD
AVAILABLE
|
CPI
FIELD NAME
|
|
ACCRUED
LATE CHARGES
|
ACCRUED_LATE_CHARGE
|
|
ASSUMPTION
ALLOWED
|
ASSUMPTION_CODE
|
|
MAILING
CITY
|
BILL_CITY
|
|
MAILING
STATE
|
BILL_STATE
|
|
MAILING
STREET DIRECTION
|
BILL_STREET_DIRECTION
|
|
MAILING
STREET NAME
|
BILL_STREET_NAME
|
|
MAILING
STREET NUMBER
|
BILL_STREET_NUMBER
|
|
MAILING
ZIP CODE
|
BILL_ZIP_5
|
|
ESCROW
BALANCE
|
CALC_ESCROW_BALANCE
|
|
MI
CANCELLATION DATE
|
CANCELLATION_DATE
|
|
PROPERTY
CITY
|
CITY_NAME
|
|
SECONDARY
FINANCING
|
CLTV
|
|
CO-CUSTOMER
FIRST NAME
|
CO_MORTGAGOR_NAME_FIRST
|
|
CO-CUSTOMER
LAST NAME
|
CO_MORTGAGOR_NAME_LAST
|
|
CO-CUSTOMER
MIDDLE NAME
|
CO_MORTGAGOR_NAME_MI
|
|
CO-CUSTOMER
SOCIAL SECURITY #
|
COMORTG_SOCIAL_SECURITY_NUMBER
|
|
PROPERTY
COUNTY NAME
|
COUNTY_NAME
|
|
MONTHLY
ESCROW TAX
|
COUNTY_TAX
+ CITY_TAX + LIEN_AMOUNT
|
|
DELINQUENCY
INDICATOR
|
DELINQUENCY_INDICATOR
|
|
FIRST
PAYMENT DUE LOAN
|
FIRST_DUE_DATE
|
|
CURRENT
UPB
|
FIRST_PRINCIPAL_BALANCE
|
|
FLOOD
CERTIFICATE NUMBER
|
FLOOD_CERTIFICATION_NUMBER
|
|
FLOOD
VENDOR
|
FLOOD_COMPLIANCE_COMPANY
|
|
FLOOD
REQUIRED
|
FLOOD_INSURANCE_CODE
|
|
FLOOD
ZONE
|
FLOOD_ZONE_1
|
|
GRACE
PERIOD DAYS
|
GRACE_DAYS
|
|
MONTHLY
ESCROW PROPERTY INSURANCE
|
HAZARD_PREMIUM
|
|
LIEN
TYPE
|
HI_TYPE
|
|
RACE
- MORTGAGOR
|
HMDA_APP_RACE
|
|
SEX
- MORTGAGOR
|
HMDA_APP_SEX
|
|
RACE
- COMORTGAGOR
|
HMDA_COAPP_RACE
|
|
SEX
- COMORTGAGOR
|
HMDA_COAPP_SEX
|
|
NOTE
RATE
|
INTEREST_RATE
|
|
LATE
CHARGE OPTION
|
LATE_CHARGE_CODE
|
|
LATE
CHARGE PERCENT
|
LATE_CHARGE_FACTOR
|
|
FICO
Score
|
LOAN_CREDIT_SCORE
|
|
LOAN
ORIGINATION DATE
|
LOAN_DATE
|
|
LOAN
MATURITY DATE
|
LOAN_MATURITY_DATE
|
|
SELLER
LOAN #
|
LOAN_NUM_10
|
|
LOAN
PURPOSE
|
LOAN_PURPOSE
|
|
LOAN
TERM
|
LOAN_TERM
|
|
LOAN
TYPE
|
LOAN_TYPE
|
|
MARGIN
|
MARGIN_RATE
|
|
MAX
INTEREST RATE
|
MAX_LIFE_CEILING_RATE
|
|
MINIMUM
INTEREST RATE
|
MAX_LIFE_FLOOR_RATE
|
|
MERS
MIN #
|
MIN_NUMBER
|
|
PMI/MI
COMPANY CODE
|
MIP_PAYEE
|
|
MERS
MOM FLAG
|
MOM_STATUS
|
|
INCOME
|
MONTHLY_INCOME
|
|
PMI/MI
COMPANY POLICY #
|
MORTG_INS_CERTIFICATE_NUMBER
|
|
MONTHLY
ESCROW - PMI
|
MORTG_INS_MONTHLY_AMOUNT
|
|
CUSTOMER
SOCIAL SECURITY #
|
MORTG_SOCIAL_SECURITY_NUMBER
|
|
CUSTOMER
FIRST NAME
|
MORTGAGOR_NAME_FIRST
|
|
CUSTOMER
LAST NAME
|
MORTGAGOR_NAME_LAST
|
|
CUSTOMER
MIDDLE NAME
|
MORTGAGOR_NAME_MI
|
|
CUSTOMERS
FIRST DUE DATE DUE GMACM
|
NEXT_PAYMENT_DUE_DATE
|
|
NUMBER
OF UNITS
|
NUMBER_OF_UNITS
|
|
OCCUPANCY
CODE
|
OCCUPANCY_CODE
|
|
DEBT-TO-INCOME
|
OI_RATIO
|
|
ORIGINAL
NOTE RATE
|
ORIGINAL_INTEREST_RATE
|
|
ORIGINAL
NOTE TERM
|
ORIGINAL_LOAN_TERM
|
|
ORIGINAL
LOAN AMOUNT
|
ORIGINAL_MORTGAGE_AMOUNT
|
|
ORIGINAL
NOTE P&I
|
ORIGINAL_P_I_AMOUNT
|
|
P&I
PAYMENT AMOUNT
|
PI_PAYMENT_AMOUNT
|
|
PMI
POOL CODE
|
POOL_PMI_PAYEE
|
|
PMI
POOL POLICY #
|
POOL_PMI_POLICY_NUMBER
|
|
PRODUCT
CODE
|
PRD_CODE
|
|
MI%
COVERAGE
|
PRIMARY_MORTG_INS_COVERAGE_FAC
|
|
PROPERTY
TYPE
|
PROPERTY_TYPE
|
|
APPRAISED
VALUE
|
PROPERTY_VALUE
|
|
PROPERTY
ZIP CODE
|
PROPERTY_ZIP_5
|
|
MERS
REGISTERED STATUS
|
REGISTRATION_STATUS
|
|
SALES
PRICE
|
SALE_PRICE
|
|
CUSTOMER
WORK TELEPHONE
|
SECOND_TELEPHONE_NUMBER
|
|
TAX
SERVICE FEE
|
SERVICE_FEE
|
|
PROPERTY
STATE
|
STATE_ABBREVIATION
|
|
PROPERTY
STREET ADDRESS
|
STREET_NUMBER
+ STREET_DIRECTION + STREET_NAME
|
|
SUSPENSE
BALANCE
|
SUSPENSE_BALANCE
|
|
TAX
CONTRACT NUMBER
|
TAX_SERVICE_NUMBER
|
|
CUSTOMER
HOME TELEPHONE
|
TELEPHONE_NUMBER
|
|
MI
TERMINATION DATE
|
TERMINATION_DATE
|
|
T&I
PAYMENT AMOUNT
|
TI_MONTHLY_AMOUNT
|
|
TOTAL
CUSTOMER PAYMENT AMOUNT
|
TOTAL_PAYMENT_AMOUNT
|
|
APPRAISAL
YEAR BUILT
|
YEAR_BUILT
|
G-12
