EXECUTION
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of November, 2001, by and between XXXXXX BROTHERS BANK,
FSB, a federal savings bank (the "Seller" or "Xxxxxx Brothers Bank, FSB"), and
CENDANT MORTGAGE CORPORATION, a New Jersey corporation (the "Servicer") having
an office at 0000 Xxxxxx Xxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, recites and
provides as follows:
RECITALS
WHEREAS, the Seller acquired certain first lien, fixed rate,
residential mortgage loans from the Servicer and Xxxxxx'x Gate Residential
Mortgage Trust (formerly known as Cendant Residential Mortgage Trust)
("Xxxxxx'x Gate"), which mortgage loans were either originated or acquired by
the Servicer or Xxxxxx'x Gate.
WHEREAS, such mortgage loans are currently being serviced by the
Servicer for the Seller pursuant to a Mortgage Loan Flow Purchase, Sale &
Servicing Agreement dated as of May 29, 2001, as amended by Amendment Number
1, dated and effective as of May 29, 2001, and an Additional Collateral
Servicing Agreement dated as of March 29, 2001, by and between Xxxxxx Brothers
Bank, FSB, as purchaser, the Servicer, as seller and servicer, and Xxxxxx'x
Gate, as seller (the "Servicing Agreement"), all annexed as Exhibit B hereto.
WHEREAS, the Seller has conveyed the Mortgage Loans to Structured
Asset Securities Corporation, a Delaware special purpose corporation
("SASCO"), which in turn has conveyed the Mortgage Loans to Xxxxx Fargo Bank
Minnesota, N.A. (the "Trustee"), pursuant to a trust agreement dated as of
November 1, 2001 (the "Trust Agreement"), among the Trustee, Aurora Loan
Services Inc., as master servicer ("Aurora", and together with any successor
Master Servicer appointed pursuant to the provisions of the Trust Agreement,
the "Master Servicer") and SASCO.
WHEREAS, the Seller desires that the Servicer continue to service the
Mortgage Loans, and the Servicer has agreed to do so.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement, as amended hereby with respect to the Mortgage Loans,
shall continue to apply to the Mortgage Loans, and shall govern the Mortgage
Loans for so long as such Mortgage Loans remain subject to the provisions of
the Trust Agreement.
WHEREAS, the Master Servicer and any successor master servicer shall
be obligated, among other things, to supervise the servicing of the Mortgage
Loans on behalf of the Trustee, and shall have the right under the conditions
specified herein to terminate for cause the rights and obligations of the
Servicer under this Agreement.
WHEREAS, the Seller and the Servicer intend that each of the Master
Servicer and the Trustee is an intended third party beneficiary of this
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 are hereby acknowledged, the Seller and the Servicer hereby
agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless of whether such terms
are defined in the Servicing Agreement), shall have the meanings ascribed to
such terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Mortgage
Loans, to perform and observe the duties, responsibilities and obligations
that are to be performed and observed under the provisions of the Servicing
Agreement, except as otherwise provided herein and on Exhibit A hereto, and
that the provisions of the Servicing Agreement, as so modified, are and shall
be a part of this Agreement to the same extent as if set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Mortgage Loans in accordance with the provisions of this
Agreement. The Master Servicer, acting on behalf of the Trustee and the SASCO
2001-17 Trust Fund (the "Trust Fund") created pursuant to the Trust Agreement,
shall have the same rights as Xxxxxx Brothers Bank, FSB as purchaser, under
the Servicing Agreement to enforce the obligations of the Servicer under the
Servicing Agreement and the term "Purchaser" as used in the Servicing
Agreement in connection with any rights of the Purchaser shall refer to the
Trust Fund or, as the context requires, the Master Servicer acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit
A hereto. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Article X of the Servicing
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Master Servicer assume any of the obligations of Xxxxxx Brothers Bank, FSB
under the Servicing Agreement; and in connection with the performance of the
Master Servicer's duties hereunder, the parties and other signatories hereto
agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability afforded to the Master Servicer under
the Trust Agreement.
4. Compliance with HOEPA. The Servicer is currently in compliance
with the Home Ownership and Equity Protection Act ("HOEPA") and will continue
to operate its business in compliance with HOEPA.
5. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the characteristics of the Mortgage Loans (other than those
representations and warranties made in Section 3.03 of the Servicing
Agreement) in connection with the transactions contemplated by the Trust
Agreement and issuance of the Certificates issued pursuant thereto.
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6. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to
be provided to the Trustee shall be in writing and shall be deemed received or
given when mailed first-class mail, postage prepaid, addressed to each other
party at its address specified below or, if sent by facsimile or electronic
mail, when facsimile or electronic confirmation of receipt by the recipient is
received by the sender of such notice. Each party may designate to the other
parties in writing, from time to time, other addresses to which notices and
communications hereunder shall be sent.
All notices required to be delivered to the Master Servicer under
this Agreement shall be delivered to the Master Servicer at the following
address:
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: E. Xxxx Xxxxxxxxxx, Master Servicing, SASCO 2001-17
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
All remittances required to be made to the Master Servicer under this
Agreement shall be made on a scheduled/scheduled basis to the following wire
account:
The Chase Manhattan Bank
New York, New York
ABA#: 000-000-000
Account Name: Aurora Loan Services Inc., Master Servicing
Payment Clearing Account
Account Number: 066-661059
Beneficiary: Aurora Loan Services Inc.
For further credit to: SASCO 2001-17
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
Xxxxx Fargo Bank Minnesota, N.A.
Securities Administration Services
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller at the following address:
Xxxxxx Brothers Bank, FSB
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
3
New York, New York 10011
Attention: Contract Finance - Xxxxxx Xxxxxx
Telephone: (000) 000-0000
All notices required to be delivered to the Servicer hereunder shall
be delivered to the address of its office as set forth in the first paragraph
of this Agreement.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS F THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK
OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
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Executed as of the day and year first above written.
XXXXXX BROTHERS BANK, FSB,
as Seller
By: /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION,
as Servicer
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
ACKNOWLEDGED BY:
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. Xxxx Xxxxxxxxxx
----------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Exec. Vice President
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, for purposes of this Agreement, any
provisions of the Servicing Agreement, including definitions, relating to
(i) representations and warranties of the Purchaser, (ii) the sale and
purchase of the Mortgage Loans, (iii) Funding Dates and (iv) Specially
Serviced Mortgage Loans, shall be disregarded. The exhibits to the
Servicing Agreement and all references to such exhibits shall also be
disregarded.
2. For reporting purposes, a Mortgage Loan is "delinquent" when any payment
contractually due thereon has not been made by the close of business on
the Due Date therefor. Such Mortgage Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which
such payment was first due, or, if there is no such corresponding day
(e.g., as when a 30-day month follows a 31-day month in which a payment
was due on the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for "60 days Delinquent" and the
second immediately succeeding month and "90 days Delinquent" and the
third immediately succeeding month.
3. A new definition of "Adverse REMIC Event" is hereby added to Article I to
read as follows:
"Adverse REMIC Event": As defined in Article X of the Trust Agreement.
4. The definition of "Collection Account" is hereby amended to change the
words "the Purchaser of Mortgage Loans under the Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of May 29, 2001" to "SASCO
2001-17 Trust Fund".
5. The definition of "Custodial Agreement" in Article I is hereby amended in
its entirety to read as follows:
"Custodial Agreement" means the Custodial Agreement dated as of
November 1, 2001 between the Custodian and the Trustee.
6. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means U.S. Bank, National Association, any successor in
interest or any successor custodian appointed pursuant to the
Custodial Agreement.
7. The definition of "Cut Off Date" in Article I is hereby amended in its
entirety to read as follows:
"Cut Off Date": The close of business on November 1, 2001.
8. The definition of "Eligible Account" is hereby amended and restated in
its entirety to read as follows:
"Eligible Account": One or more accounts that are maintained with (i)
a depository the accounts of which are insured by the FDIC and the
debt obligations of which are rated AA (or its equivalent) or better
by each Rating Agency; (ii) the corporate trust department of any
bank the debt obligations of which are rated at least A-1 or its
equivalent by each Rating Agency; or (iii) Xxxxxx Brothers Bank,
F.S.B., a federal savings bank.
9. The definition of "Escrow Account" in Article I is hereby amended by
changing the words "the Purchaser under the Mortgage Loan Flow Purchase,
Sale and Servicing Agreement, dated as of March 29, 2001 (as amended),
and various mortgagors" therein to "SASCO 2001-17 Trust Fund".
10. The definition of "Mortgage Loan Schedule" in Article I is hereby amended
in its entirety to read as follows:
"Mortgage Loan Schedule": The schedule of Mortgage Loans setting
forth certain information with respect to the Mortgage Loans, which
Mortgage Loan Schedule is attached as Exhibit C to this Agreement.
11. A new definition of "Opinion of Counsel" is hereby added to Article I to
read as follows:
"Opinion of Counsel" A written opinion of counsel, who may be an
employee of the Servicer, that is reasonably acceptable to the
Trustee and the Master Servicer provided that any Opinion of Counsel
relating to (a) qualification of the Mortgage Loans in a REMIC or (b)
compliance with the REMIC Provisions, must be an opinion of counsel
reasonably acceptable to the Trustee and Xxxxxx Brothers Bank, FSB,
who (i) is in fact independent of any Seller, the Servicer and any
Master Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the Servicer or any
Master Servicer of the Mortgage Loans or in an affiliate of any such
entity and (iii) is not connected with any Seller, the Servicer or
any Master Servicer of the Mortgage Loans as an officer, employee,
director or person performing similar functions.
12. A new definition of "REMIC Provisions" is hereby added to Article I to
read as follows:
"REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and regulations, including proposed
regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time
to time."
13. The definition of "REO Property" in Article I is hereby amended by
replacing the word "Purchaser" with "Trustee on behalf of the Trust
Fund".
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14. The parties hereto acknowledge that Section 2.02 (Possession of Mortgage
Files) shall be inapplicable to this Agreement, as superseded by the
provisions of the Custodial Agreement and the Trust Agreement.
15. The parties hereto acknowledge that Section 2.05 (Transfer of Mortgage
Loans) of the Servicing Agreement shall be modified to indicate that the
Custodian shall prepare and execute at the direction of the Seller any
note endorsements in connection with transfer of the Mortgage Loans to
the Trust Fund as the owner of the Mortgage Loans and that the Seller
shall pay for any fees associated with the preparation and execution of
such note endorsements to the Trust Fund.
16. For purposes of servicing only, the second, third, fourth and fifth
paragraphs of Section 3.04 (Repurchase) are hereby restated to read as
follows:
Within 60 days of the earlier of either discovery by or notice to the
Servicer of any breach of a representation or warranty set forth in
Section 3.02 which materially and adversely affects the ability of
the Servicer to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the value of
the Mortgage Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property, the Servicer shall use
its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Servicer shall, at
the Trustee's option, assign the Servicer's rights and obligations
under this Agreement (or respecting the affected Mortgage Loans) to a
successor Servicer selected by the Trustee with the prior consent and
approval of the Master Servicer. Such assignment shall be made in
accordance with Section 12.01.
In addition, the Servicer shall indemnify (from its own funds) the
Trustee, the Trust Fund and the Master Servicer and hold each of them
harmless against any costs resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach
of the Servicer's representations and warranties contained in this
Agreement. It is understood and agreed that the remedies set forth in
this Section 3.04 constitute the sole remedies of the Master
Servicer, the Trust Fund and the Trustee respecting a breach of the
foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Section 3.01 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within the
applicable cure period, and (iii) demand upon the Servicer by the
Trustee or the Master Servicer for compliance with this Agreement
17. Section 5.01(3)(c)(3) is hereby amended by replacing the word "Purchaser"
with "Master Servicer".
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18. Section 5.01(3) is hereby amended by adding a new subsections (g) thereto
to read as follows:
"(g) the Servicer shall not, unless default by the related Mortgagor
has occurred or is, in the reasonable judgment of the Servicer,
imminent, knowingly permit any modification, waiver or amendment of
any material term of any Mortgage Loan (including but not limited to
the interest rate, the principal balance, the amortization schedule,
or any other term affecting the amount or timing of payments on the
Mortgage Loan or the collateral therefor) unless the Servicer shall
have provided to the Master Servicer and the Trustee an Opinion of
Counsel in writing to the effect that such modification, waiver or
amendment would not cause an Adverse REMIC Event."
19. The parties hereto acknowledge that the reference to each Funding Date in
the second paragraph of Section 5.04 shall mean the "close of business on
November 1, 2001."
20. Section 5.04(10) is hereby amended by adding to the end thereof the words
", such deposit to be made from the Servicer's own funds without
reimbursement therefor."
21. Section 5.13 is hereby amended by replacing the second paragraph of such
section thereof with the following:
"In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage Loan, the
Servicer shall dispose of such REO Property not later than the end of
the third taxable year after the year of its acquisition by the Trust
Fund unless the Servicer has applied for and received a grant of
extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the Trust Fund may hold REO Property for a
longer period without adversely affecting the REMIC status of such
REMIC or causing the imposition of a federal or state tax upon such
REMIC. If the Servicer has received such an extension, then the
Servicer shall continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as such
extension permits (the "Extended Period"). If the Servicer has not
received such an extension and the Servicer is unable to sell the REO
Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the Trust Fund or if the
Servicer has received such an extension, and the Servicer is unable
to sell the REO Property within the period ending three months before
the close of the Extended Period, the Servicer shall, before the end
of the three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO Property's
fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably designed
to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be. The Trustee shall
sign any document or take any other action reasonably requested by
the Servicer which would enable the Servicer, on behalf of the Trust
Fund, to request such grant of extension.
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Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would: (i) cause
such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code; or (ii) subject the
Trust Fund to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes imposed by
reason of Sections 860F or 860G(c) of the Code, unless the Servicer
has agreed to indemnify and hold harmless the Trust Fund with respect
to the imposition of any such taxes."
22. Section 5.15 is hereby amended by changing the words "2 years" in the
last sentence of the third paragraph thereof to "3 years".
23. Section 6.01 (Remittances) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing paragraphs (1) and
(2) of such section with the following:
"(1) On each Remittance Date, the Servicer shall remit to the
Purchaser (a) all amounts credited to the Collection Account as of
the close of business on the last day of the related Due Period
(including (1) the amount of any Payoff, together with interest
thereon at the related Remittance Rate to the end of the month in
which prepayment of the related Mortgage Loan occurs and (2) all
proceeds of any REO Disposition net of amounts payable to the
Servicer pursuant to Section 5.13), net of charges against or
withdrawals from the Collection Account in accordance with Section
5.05, which charges against or withdrawals from the Collection
Account the Servicer shall make solely on such Remittance Date, plus
(b) all Monthly Advances, if any, which the Servicer is obligated to
remit pursuant to Section 6.03; provided that the Servicer shall not
be required to remit, until the next following Remittance Date, any
amounts attributable to Monthly Payments collected but due on a Due
Date or Dates subsequent to the related Due Period.
(2) All remittances required to be made to the Master Servicer
shall be made to the following wire account or to such other account
as may be specified by the Master Servicer from time to time:
The Chase Manhattan Bank
New York, New York
ABA #: 000-000-000
Account Name: Aurora Loan Services Inc.
Master Servicing Payment Clearing Account
Account Number: 066-611059
Beneficiary: Aurora Loan Services Inc.
For further credit to: Aurora Loan Services 2001-17"
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24. Section 6.02 (Reporting) is hereby amended by replacing the word
"Purchaser" with "Master Servicer" and by replacing the first sentence of
such section with the following:
On or before the 5th calendar day (or, if such day is not a
Business Day, on the immediately succeeding Business Day) of each
month during the term hereof, the Servicer shall furnish to the
Master Servicer (a) a monthly accounting report containing such
information in the form of FNMA Form 2010 or such other form as shall
be required by the FNMA Guides or by the Master Servicer as to the
accompanying remittance and the most recently ended calendar month
and (b) all such information required pursuant to clause (a) above on
a magnetic tape or other similar media mutually acceptable to the
Servicer and the Master Servicer.
25. Section 6.03 (Monthly Advances by Servicer) is hereby amended by adding
the following new sentence immediately following the second sentence of
such section:
Any Prepaid Monthly Payments so used to make Monthly Advances
shall be replaced by the Servicer by deposit in the Custodial Account
on or before any future Remittance Date if funds in the Custodial
Account on such Remittance Date shall be less than payments to the
Trust Fund required to be made on such Remittance Date.
26. Sections 7.04 and 7.05 are hereby amended by replacing the word
"Purchaser" with "Master Servicer".
27. Section 9.01 (Indemnification; Third Party Claims) is hereby amended by
changing the word "Purchaser" to "Master Servicer, Trustee and the Trust
Fund."
28. Section 9.02 is hereby amended by changing the word "Purchaser" to
"Trustee" where it appears in the proviso to the second sentence thereof.
29. Section 9.04 (Servicer Not to Resign) is hereby amended in its entirety
to read as follows:
The Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any
portion hereof (to other than a third party in the case of
outsourcing routine tasks such as taxes, insurance and property
inspection, in which case the Servicer shall be fully liable for such
tasks as if the Servicer performed them itself) or sell or otherwise
dispose of all or substantially all of its property or assets without
the prior written consent of the Trustee and the Master Servicer,
which consent shall be granted or withheld in the reasonable
discretion of such parties, provided, however, that the Servicer may
assign its rights and obligations hereunder without prior written
consent of the Trustee and the Master Servicer to any entity that is
directly owned or controlled by the Servicer, and the Servicer
guarantees the performance of such entity hereunder. In the event of
such assignment by the Servicer, the Servicer shall provide the
Trustee and the Master Servicer with a written statement guaranteeing
the successor entity's performance of the Servicer's obligations
under the Agreement.
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30. Section 10.01 (Events of Default) is hereby amended by changing the words
"3 Business Days" in Section 10.01(1) to "1 Business Day", by deleting
the remainder of Section 10.01(1) and by changing the words "45 days" and
45-day" in Section 10.01(2) to "15 days and 15-day" respectively.
31. The parties hereto acknowledge that the remedies set forth in Section
10.01 may be exercised by either the Master Servicer or the Trustee on
behalf of the Trust Fund.
32. Section 11.01 (Term and Termination) is hereby amended by changing the
references to "Purchaser" in the second and third paragraph of such
section to "Master Servicer."
33. Section 11.02 is hereby deleted in its entirety.
34. Section 12.01 (Successor to the Servicer) is hereby amended in its
entirety to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to
Sections 9.04, 10.01, 11.01 or 11.02, the Master Servicer shall, in
accordance with the provisions of the Trust Agreement (i) succeed to
and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor meeting
the eligibility requirements of this Agreement set forth in Section
9.02 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this
Agreement with the termination of the Servicer's responsibilities,
duties and liabilities under this Agreement. Any successor to the
Servicer that is not at that time a Servicer of other Mortgage Loans
for the Trust Fund shall be subject to the approval of the Master
Servicer, Xxxxxx Brothers Bank, FSB, the Trustee and each Rating
Agency (as such term is defined in the Trust Agreement). Unless the
successor servicer is at that time a servicer of other mortgage loans
for the Trust Fund, each Rating Agency must deliver to the Trustee a
letter to the effect that such transfer of servicing will not result
in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In connection with such
appointment and assumption, the Master Servicer or the Depositor, as
applicable, may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the Servicer under this
Agreement. In the event that the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to
the aforementioned sections, the Servicer shall discharge such duties
and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with
the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action whatsoever
that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Servicer pursuant to
the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 12.01 and shall
in no event relieve the Servicer of the representations and
warranties made
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pursuant to Section 3.02 and the remedies available to the Trustee
under Sections 3.04 and 9.01, it being understood and agreed that the
provisions of such Sections 3.02, 3.04 and 9.01 shall be applicable
to the Servicer notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's possession
all Servicing Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice
of termination. The Servicer shall cooperate with the Trustee and the
Master Servicer, as applicable, and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder
and the transfer of servicing responsibilities to the successor
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 Servicer to the Custodial Account or any
Escrow Account or thereafter received with respect to the Mortgage
Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 3.02 and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities
of the Servicer, with like effect as if originally named as a party
to this Agreement. Any termination or resignation of the Servicer or
termination of this Agreement pursuant to Section 12.01 shall not
affect any claims that the Master Servicer or the Trustee may have
against the Servicer arising out of the Servicer's actions or failure
to act prior to any such termination or resignation.
The Servicer shall deliver within ten (10) Business Days to the
successor Servicer the funds in the Custodial Account and Escrow
Account and all Mortgage Loan Documents and related documents and
statements held by it hereunder and the Servicer shall account for
all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
35. Intended Third Party Beneficiaries. Notwithstanding any provision herein
to the contrary, the parties to this Agreement agree that it is
appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive
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the benefit of the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions. The
Servicer shall have the same obligations to the Master Servicer and the
Trustee as if they were parties to this Agreement, and the Master
Servicer and the Trustee shall have the same rights and remedies to
enforce the provisions of this Agreement as if they were parties to this
Agreement. The Servicer shall only take direction from the Master
Servicer (if direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement. Notwithstanding
the foregoing, all rights and obligations of the Master Servicer and the
Trustee hereunder (other than the right to indemnification) shall
terminate upon termination of the Trust Agreement and of the Trust Fund
pursuant to the Trust Agreement.
36. Request for Release. When requesting a release of documents from the
Custodian, the Servicer shall use the form attached hereto as Exhibit D.
9
EXHIBIT B
Servicing Agreement
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
dated as of May 29, 2001
between
XXXXXX BROTHERS BANK, FSB, Purchaser
and
CENDANT MORTGAGE CORPORATION and
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST
(formerly known as CENDANT RESIDENTIAL MORTGAGE TRUST)
Sellers
Schedules
---------
A. Mortgage Loan Schedule
B. Content of Mortgage File
B-1 Purchaser's Mortgage File
B-2 Servicer's Mortgage File
C. Cendant Guidelines and Restrictions
Exhibits
Exhibit 2.05 Form of Assignment, Assumption and Recognition Agreement
Exhibit 5.03(a) Report P-4DL
Exhibit 5.03(b) Report S-5L2
Exhibit 5.03(c) Form of Notice of Foreclosure
Exhibit 5.04-1 Form of Collection Account Certification
Exhibit 5.04-2 Form of Collection Account Letter Agreement
Exhibit 5.06-1 Form of Escrow Account Certification
Exhibit 5.06-2 Form of Escrow Account Letter Agreement
Exhibit 6.02(a) Report P-139 -- Monthly Statement of Mortgage Accounts
Exhibit 6.02(b) Report S-50Y -- Private Pool Detail Report
Exhibit 6.02(c) Report S-213 -- Summary of Curtailments Made Remittance Report
Exhibit 6.02(d) Report S-214 -- Summary of Paid in Full Remittance Report
Exhibit 6.02(e) Report S-215 -- Consolidation of Remittance Report
Exhibit 6.02(f) Report T-62C -- Monthly Accounting Report
Exhibit 6.02(g) Report T-62E -- Liquidation Report
Exhibit 8.01 Report P-195 Delinquency Report
Exhibit 9.01 Custodial Agreement
Exbitit 9.02 Form of Assignment and Assumption Agreement
Exhibit 10 Assignment and Conveyance
2
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
-------------------------------------------------------
This Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of
May 29, 2001, is entered into between Xxxxxx Brothers Bank, FSB, as the
Purchaser ("Purchaser"), Cendant Mortgage Corporation ("Cendant Mortgage") and
Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust) (the "Trust," together with Cendant Mortgage, the "Sellers" and
individually, each a "Seller"), as the Sellers.
PRELIMINARY STATEMENT
1. Cendant Mortgage is engaged in the business, inter alia, of making loans to
individuals, the repayment of which is secured by a first lien mortgage on such
individuals' residences (each, a "MORTGAGE LOAN"). The Trust is engaged in the
business of purchasing such Mortgage Loans from Cendant Mortgage and selling
same to investors.
2. Purchaser is engaged in the business, inter alia, of purchasing Mortgage
Loans for its own account.
3. Cendant Mortgage has established certain terms, conditions and loan programs,
as described in Cendant Mortgage's Program and Underwriting Guidelines (the
"CENDANT GUIDE") and Purchaser is willing to purchase Mortgage Loans that comply
with the terms of such terms, conditions and loan programs. The applicable
provisions of the Cendant Guide are attached hereto as Schedule C.
4. Purchaser and Sellers desire to establish a flow program whereby Cendant
Mortgage will make Mortgage Loans which meet the applicable provisions of the
Cendant Guide, and Purchaser will, on a regular basis, purchase such Mortgage
Loans from Cendant Mortgage or the Trust, as applicable, provided the parties
agree on the price, date and other conditions or considerations as set forth in
this Agreement.
5. Purchaser and Sellers wish to prescribe the terms and manner of purchase by
the Purchaser and sale by the Sellers of the Mortgage Loans, and the management
and servicing of the Mortgage Loans by Cendant Mortgage, as the Servicer (the
"Servicer"), in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth,
the Purchaser and the Sellers agree as follows:
3
ARTICLE I: DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases shall have
the following meaning specified in this Article:
"Affiliate": When used with reference to a specified Person, any Person
that (i) directly or indirectly controls or is controlled by or is under common
control with the specified Person, (ii) is an officer of, partner in or trustee
of, or serves in a similar capacity with respect to, the specified person or of
which the specified Person is an officer, partner or trustee, or with respect to
which the specified Person serves in a similar capacity, or (iii) directly or
indirectly is the beneficial owner of 10% or more of any class of equity
securities of the specified Person or of which the specified person is directly
or indirectly the owner of 10% or more of any class of equity securities.
"Agreement": This Mortgage Loan Flow Purchase, Sale & Servicing Agreement
between the Purchaser and the Sellers.
"ALTA": The American Land Title Association.
"Appraised Value": With respect to any Mortgaged Property, the lesser of:
(i) the value thereof as determined by an appraisal made for the originator of
the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of FNMA and FHLMC; or (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan; provided that, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property shall be based solely upon
the value determined by an appraisal made for the originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan by an
appraiser who met the minimum requirements of FNMA and FHLMC.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of which is
subject to periodic adjustment in accordance with the terms of the Mortgage
Note.
"Assignment": An individual assignment of a Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale or transfer of the Mortgage Loan.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (11 U.S.C. (Sections)
101-1330), as amended, modified, or supplemented from time to time, and any
successor statute, and all rules and regulations issued or promulgated in
connection therewith.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a day
on which the Federal Reserve is closed.
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"Cendant Guide": As defined in paragraph 3 of the Preliminary Statement to
this Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The separate trust account or accounts created and
maintained pursuant to Section 5.04 which shall be entitled "Cendant Mortgage
Corporation, as servicer and custodian for the Purchaser of Mortgage Loans under
the Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of March
29, 2001 ."
"Condemnation Proceeds": All awards or settlements in respect of a taking
of an entire Mortgaged Property or a part thereof by exercise of the power of
eminent domain or condemnation.
"Credit Documents": Those documents, comprising part of the Mortgage File,
required of the Mortgagor, as described in Section 2 (Specific Loan Program
Guidelines) of the Guide.
"Custodian": U.S. Bank Trust National Association.
"Custodial Agreement": The agreement between the Custodian and Purchaser
attached hereto as Exhibit 9.
"Cut Off Date": The first day of the month in which the related Funding
Date occurs.
"Defective Mortgage Loan": As defined in Section 3.04(3).
"Determination Date": The 15th day of each calendar month, commencing on
the 15th day of the month following the Closing Date, or, if such 15th day is
not a Business Day, the Business Day immediately preceding such 15th day.
"Due Date": With respect to any Mortgage Loan, the day of the month on
which each Monthly Payment is due thereon, exclusive of any days of grace.
"Due Period": With respect to each Remittance Date, the period commencing
on the second day of the month immediately preceding the month of such
Remittance Date and ending on the first day of the month of such Remittance
Date.
"Effective Loan-to-Value Ratio" or "ELTV": With respect to any Mortgage
Loan which falls under Xxxxxxx Xxxxx Credit Corporation (MLCC) Additional
Collateral program, ELTV represents the Loan Balance less Pledge Amount divided
by the lesser of Purchase Price or Appraised Value of the Property.
"Eligible Account": One or more accounts (i) that are maintained with a
depository institution the long-term unsecured debt obligations of which have
been rated by each Rating Agency in one of its two highest rating categories at
the time of any deposit therein, (ii) that are trust accounts with any
depository institution held by the depository institution in its capacity as a
corporate trustee, or (iii) the deposits in which are insured by the FDIC (to
the limits established by the FDIC) and the uninsured deposits in which are
otherwise secured such that the Purchaser
5
has a claim with respect to the funds in such accounts or a perfected first
security interest against any collateral securing such funds that is superior to
claims of any other depositors or creditors of the depository institution with
which such accounts are maintained. In addition, solely with respect to Mortgage
Loans which are not part of a securitization, "Eligible Account" shall include
any accounts that meet the standards established from time to time by FNMA for
eligible custodial depositories.
"Environmental Assessment": A "Phase I" environmental assessment of a
Mortgaged Property prepared by an Independent Person who regularly conducts
environmental assessments and who has any necessary license(s) required by
applicable law and has five years experience in conducting environmental
assessments.
"Environmental Conditions Precedent to Foreclosure": As defined in Section
5.15(v).
"Environmental Laws": All federal, state, and local statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or other governmental
restrictions relating to the environment or to emissions, discharges or releases
of pollutants, contaminants or industrial, toxic or hazardous substances or
wastes into the environment, including ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants or industrial, toxic or hazardous substances or wastes or the
cleanup or other remediation thereof.
"Escrow Account": The separate trust account or accounts created and
maintained pursuant to Section 5.06 which shall be entitled "Cendant Mortgage
Corporation, as servicer and custodian for the Purchaser under the Mortgage Loan
Flow Purchase, Sale & and Servicing Agreement, dated as of March 29, 2001 (as
amended), and various mortgagors."
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
"Event of Default": Any one of the conditions or circumstances enumerated
in Section 10.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor
organization.
"FHLMC": The Federal Home Loan Mortgage Corporation (also known as Xxxxxxx
Mac) or any successor organization.
"FHLMC Servicing Guide": The FHLMC/Xxxxxxx Xxx Xxxxxxx' and Servicers'
Guide in effect on and after the Funding Date.
"Fidelity Bond": A fidelity bond to be maintained by the Servicer pursuant
to Section 5.12.
6
"Fixed Rate Loan": A "fixed rate" Mortgage Loan, the Note Rate of which is
not subject to any rate adjustments.
"FNMA": The Federal National Mortgage Association (also known as Xxxxxx
Mae) or any successor organization.
"FNMA Guide": The FNMA/Xxxxxx Xxx Selling Guide and the Servicing Guide,
collectively, in effect on and after the Funding Date.
"Funding Date": Each date (up to four per month) that Purchaser purchases
Mortgage Loans from the Sellers hereunder.
"Gross Margin": With respect to each ARM Loan, the fixed percentage added
to the Index on each Rate Adjustment Date, as specified in each related Mortgage
Note and listed in the Mortgage Loan Schedule.
"Independent": With respect to any specified Person, such Person who: (i)
does not have any direct financial interest or any material indirect financial
interest in the applicable Mortgagor, the Sellers, the Purchaser, or their
Affiliates; and (b) is not connected with the applicable Mortgagor, the Sellers,
the Purchaser, or their respective Affiliates as an officer, employee, promoter,
underwriter, trustee, member, partner, shareholder, director, or Person
performing similar functions.
"Index": With respect to each ARM Loan, on each Rate Adjustment Date, the
applicable rate index set forth on the Mortgage Loan Schedule, which shall be an
index described on such Mortgage Loan Schedule.
"Insolvency Proceeding": With respect to any Person: (i) any case, action,
or proceeding with respect to such Person before any court or other governmental
authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up, or relief of debtors; or (ii) any general
assignment for the benefit of creditors, composition, marshaling of assets for
creditors, or other, similar arrangement in respect of the creditors generally
of such Person or any substantial portion of such Person's creditors; in any
case undertaken under federal, state or foreign law, including the Bankruptcy
Code.
"Insurance Proceeds": Proceeds of any Primary Insurance Policy, title
policy, hazard policy or other insurance policy covering a Mortgage Loan, if
any, to the extent such proceeds are not to be applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held for
its own or its Affiliates' account or managed by it for third-party
institutional investors.
"Legal Documents": Those documents, comprising part of the Mortgage File,
set forth in Schedule B-1 of this Agreement.
"Lender Mortgage Insurance Fee": With respect to certain Mortgage Loans,
such fee as may be established by Seller, and which will be further set forth on
the related Mortgage Loan
7
Schedule, as the case may be, which shall be deducted from the Note Rate to
determine the Mortgage Loan Remittance Rate.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property in accordance with the provisions hereof.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan, the
original principal balance of such Mortgage Loan divided by the lesser of the
Appraised Value of the related Mortgaged Property or the purchase price.
"MAI Appraiser": With respect to any real property, a member of the
American Institute of Real Estate Appraisers with a minimum of 5 years of
experience appraising real property of a type similar to the real property being
appraised and located in the same geographical area as the real property being
appraised.
"Monthly Advance": The aggregate amount of the advances made by the
Servicer on any Remittance Date pursuant to and as more fully described in
Section 6.03.
"Monthly Payment": The scheduled monthly payment of principal and interest
on a Mortgage Loan which is payable by a Mortgagor under the related Mortgage
Note.
"Monthly Period": Initially, the period from the Closing Date through to
and including the first Record Date during the term hereof, and, thereafter, the
period commencing on the day after each Record Date during the term hereof and
ending on the next succeeding Record Date during the term hereof (or, if
earlier, the date on which this Agreement terminates).
"Mortgage": The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note.
"Mortgaged Property": With respect to a Mortgage Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a fee simple
estate.
"Mortgage File": With respect to a particular Mortgage Loan, those
origination and servicing documents, escrow documents, and other documents as
are specified on Schedule B to this Agreement.
"Mortgage Loan": Each individual mortgage loan (including all documents
included in the Mortgage File evidencing the same, all Monthly Payments,
Principal Prepayments , Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, and other proceeds relating thereto, and any and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith) which is
the subject of this Agreement. The Mortgage Loans subject to this Agreement
shall be identified on Mortgage Loan Schedules prepared in connection with each
Funding Date.
8
"Mortgage Loan Remittance Rate": The Note Rate of the Mortgage Loans less
the Servicing Fee Rate and less the Lender Mortgage Insurance fee, if
applicable.
"Mortgage Loan Schedule": The list of Mortgage Loans identified on each
Funding Date that sets forth the information with respect to each Mortgage Loan
that is specified on Schedule A hereto. A Mortgage Loan
Schedule will be prepared for each Funding Date.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgagor": The obligor on a Mortgage Note.
"Note Rate": With respect to any Mortgage Loan at any time any
determination thereof is to be made, the annual rate at which interest accrues
thereon.
"Officers' Certificate": A certificate signed by (i) the President or a
Vice President and (ii) the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered by the
Servicer to the Purchaser as required by this Agreement.
"Payoff": With respect to any Mortgage Loan, any payment or recovery
received in advance of the last scheduled Due Date of such Mortgage Loan, which
payment or recovery consists of principal in an amount equal to the outstanding
principal balance of such Mortgage Loan, all accrued and unpaid prepayment
penalties, premiums, and/or interest with respect thereto, and all other unpaid
sums due with respect to such Mortgage Loan.
"Permitted Investments": Any one or more of the obligations and securities
listed below which investment provides for a date of maturity not later than the
Determination Date in each month:
(i) 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; and
(ii) federal funds, demand and time deposits in, certificates of deposits
of, or bankers' acceptances issued by, any depository institution or trust
company incorporated or organized 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, so long as at the time of such investment or
contractual commitment providing for such investment the commercial paper or
other short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company which is
the principal subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) are rated "P-1" by Xxxxx'x
Investors Service, Inc. and the long-term debt obligations of such holding
company) are rated "P-1" by Xxxxx'x Investors Service, Inc. and the long-term
debt obligations of such depository institution or trust company (or, in the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the long-term debt obligations of such holding
company) are rated at least "Aa" by Xxxxx'x Investors Service, Inc.; provided,
however, that no such instrument shall be an Eligible Investment if such
instrument evidences
9
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
incorporated organization or government or any agency or political subdivision
thereof.
"Prepaid Monthly Payment": Any Monthly Payment received prior to its
scheduled Due Date and which is intended to be applied to a Mortgage Loan on its
scheduled Due Date.
"Primary Insurance Policy": Each primary policy of mortgage insurance in
effect with respect to a Mortgage Loan and as so indicated on the Mortgage Loan
Schedule, or any replacement policy therefor obtained by the Servicer pursuant
to Section 5.08.
"Principal Prepayment": Any payment or other recovery of principal on a
Mortgage Loan (including a Payoff), other than a Monthly Payment or a Prepaid
Monthly Payment which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon, which is not accompanied by
an amount of interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment and which is
intended to reduce the principal balance of the Mortgage Loan.
"Purchaser": Xxxxxx Brothers Bank, FSB, or its successor in interest or any
successor under this Agreement appointed as herein provided.
"Purchaser's Account": The account of the Purchaser at a bank or other
entity most recently designated in a written notice by the Purchaser to the
Sellers as the "Purchaser's Account."
"Purchase Price": as to each Mortgage Loan to be sold hereunder, the price
set forth in the Purchase Price and Terms Letter.
"Purchase Price and Terms Letter": With respect to each purchase of
Mortgage Loans, that certain letter agreement setting forth the general terms
and conditions of such transaction and identifying the Mortgage Loans to be
purchased thereunder by and between the Seller and the Purchaser.
"Qualified Mortgage Insurer": American Guaranty Corporation, Commonwealth
Mortgage Assurance Company, General Electric Mortgage Insurance Companies,
Mortgage Guaranty Insurance Corporation, PMI Mortgage Insurance Company,
Republic Mortgage Insurance Company, Radian Guaranty Corporation, or United
Guaranty Residential Insurance Corporation.
10
"Rate Adjustment Date": With respect to each ARM Loan, the date on which
the Note Rate adjusts.
"Rating Agency": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Xxxxx'x Investors Service, Inc., or Fitch Investors
Service, Inc.
"Record Date": The close of business of the last Business Day of the month
preceding the month of the related Remittance Date.
"Refinanced Mortgage Loan": A Mortgage Loan that 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 Internal Revenue Code or any similar tax vehicle providing
for the pooling of assets (such as a Financial Asset Security Investment Trust).
"Remittance Date": The 18th day of each calendar month, commencing on the
18th day of the month following the Closing Date, or, if such 18th day is not a
Business Day, then the next Business Day immediately preceding such 18th day.
"Remittance Rate": With respect to each Mortgage Loan, the related Note
Rate minus the Servicing Fee Rate and minus Lender MI Fee where applicable.
"REO Disposition": The final sale by the Servicer of any REO Property.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf of
the Purchaser as described in Section 5.13.
"Repurchase Price": As to (a) any Defective Mortgage Loan required to be
repurchased hereunder with respect to which a breach occurred or (b) any
Mortgage Loan required to be repurchased pursuant to Section 3.04 and/or Section
7.02, an amount equal to the Unpaid Principal Balance of such Mortgage Loan at
the time of repurchase; plus (2) interest on such Mortgage Loan at the
applicable Note Rate from the last date through which interest has been paid and
distributed to the Purchaser hereunder to the date of repurchase; minus (3) any
amounts received in respect of such Defective Mortgage Loan which are being held
in the Collection Account for future remittance.
"Scheduled Principal Balance": With respect to any Mortgage Loan, (i) the
outstanding principal balance as of the Funding Date after application of
principal payments due on or before such date whether or not received, minus
(ii) all amounts previously remitted to the Purchaser with respect to such
Mortgage Loan representing (a) payments or other recoveries of principal, or (b)
advances of principal made pursuant to Section 6.03.
"Sellers": Cendant Mortgage Corporation, a New Jersey corporation and
Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust), a
11
Delaware business trust, or their successors in interest or any successor under
this Agreement appointed as herein provided.
"Servicer": Cendant Mortgage Corporation, a New Jersey corporation.
"Servicer's Mortgage File": The documents pertaining to a particular
Mortgage Loan which are specified on Exhibit S-1 attached hereto and any
additional documents required to be included or added to the "Servicer's
Mortgage File" pursuant to this Agreement.
"Servicing Advances": All "out of pocket" costs and expenses that are
customary, reasonable and necessary which are incurred by the Servicer in the
performance of its servicing obligations hereunder, including (without
duplication) (i) reasonable attorneys' fees and (ii) the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the servicing,
management and liquidation of any Specially Serviced Mortgaged Loans and/or any
REO Property, and (d) compliance with the Servicer's obligations under Section
5.08.
"Servicing Event": Any of the following events with respect to any Mortgage
Loan: (i) any Monthly Payment being more than 60 days delinquent; (ii) any
filing of an Insolvency Proceeding by or on behalf of the related Mortgagor, any
consent by or on behalf of the related Mortgagor to the filing of an Insolvency
Proceeding against such Mortgagor, or any admission by or on behalf of such
Mortgagor of its inability to pay such Person's debts generally as the same
become due; (iii) any filing of an Insolvency Proceeding against the related
Mortgagor that remains undismissed or unstayed for a period of 60 days after the
filing thereof; (iv) any issuance of any attachment or execution against, or any
appointment of a conservator, receiver or liquidator with respect to, all or
substantially all of the assets of the related Mortgagor or with respect to any
Mortgaged Property; (v) any receipt by the Servicer of notice of the foreclosure
or proposed foreclosure of any other lien on the related Mortgaged Property;
(vi) any proposal of a material modification (as reasonably determined by the
Seller) to such Mortgage Loan due to a default or imminent default under such
Mortgage Loan; or (vii) in the reasonable judgment of the Servicer, the
occurrence, or likely occurrence within 60 days, of a payment default with
respect to such Mortgage Loan that is likely to remain uncured by the related
Mortgagor within 60 days thereafter.
"Servicing Fee": The annual fee, payable monthly to the Servicer out of the
interest portion of the Monthly Payment actually received on each Mortgage Loan.
The Servicing Fee with respect to each Mortgage Loan for any calendar month (or
a portion thereof) shall be 1/12 of the product of (i) the Scheduled Principal
Balance of the Mortgage Loan and (ii) the Servicing Fee Rate applicable to such
Mortgage Loan.
"Servicing Fee Rate": (i) with respect to any ARM Loan, 0.375% per annum;
provided that, prior to the first Rate Adjustment Date with respect to any such
Mortgage Loan, such rate may be, at the Servicer's option, not less than 0.25%
per annum; and (ii) with respect to any Mortgage Loan other than an ARM Loan,
0.25% per annum. Such rate will be indicated on the Mortgage Loan Schedule.
12
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a written list of servicing officers furnished by the Servicer
to the Purchaser upon request therefor by the Purchaser, as such list may from
time to time be amended.
"Specially Serviced Mortgage Loan": A Mortgage Loan as to which a Servicing
Event has occurred and is continuing.
"Unpaid Principal Balance": With respect to any Mortgage Loan, at any time,
the actual outstanding principal balance then payable by the Mortgagor under the
terms of the related Mortgage Note.
ARTICLE II: SALE AND CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01 Sale and Conveyance of Mortgage Loans.
Seller agrees to sell and Purchaser agrees to purchase, from time to time,
those certain Mortgage Loans identified in a Mortgage Loan Schedule, on the
price and terms set forth herein. Purchaser, on any Funding Date, shall be
obligated to purchase only such Mortgage Loans set forth in the applicable
Mortgage Loan Schedule, subject to the terms and conditions of this Agreement.
Purchaser will purchase Mortgage Loan(s) from Seller, from time to time on
such Funding Dates as may be agreed upon by Purchaser and Seller. The closing
shall, at Purchaser's option 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. On the Funding Date and subject to the terms and conditions
of this Agreement, each Seller will sell, transfer, assign, set over and convey
to the Purchaser, without recourse except as set forth in this Agreement, and
the Purchaser will purchase, all of the right, title and interest of the
applicable Seller in and to the Mortgage Loans being conveyed by it hereunder,
as identified on the Mortgage Loan Schedule.
Examination of the Mortgage Files may be made by Purchaser or its designee
as follows. No later than five business days prior to the Funding Date, Seller
will deliver to Purchaser or Custodian Legal Documents required pursuant to
Schedule B. Upon Purchaser's request, Seller shall make the Credit Documents
available to Purchaser for review, at Seller's place of business and during
reasonable business hours. If Purchaser makes such examination prior to the
Funding Date and identifies any Mortgage Loans that do not conform to the
Cendant Guide, such Mortgage Loans will be deleted from the Mortgage Loan
Schedule at Purchaser's discretion. Purchaser may, at its option and without
notice to Seller, purchase all or part of the Mortgage Loans without conducting
any partial or complete examination. The fact that Purchaser has conducted or
has failed to conduct any partial or complete examination of the Mortgage Loan
files shall not affect Purchaser's rights to demand repurchase, substitution or
other relief as provided herein.
13
On the Funding Date and in accordance with the terms herein, Purchaser will
pay to Seller, by wire transfer of immediately available funds, the Purchase
Price, together with interest at the Mortgage Loan Remittance Rate from the
Cut-Off Date to the Funding Date, according to the instructions to be provided,
respectively, by Cendant Mortgage and the Trust.
Purchaser shall be entitled to all scheduled principal due after the Cut-Off
Date, all other recoveries of principal collected after the Funding Date and all
payments of interest on the Mortgage Loans (minus that portion of any such
payment which is allocable to the period prior to the Funding Date). The
principal balance of each Mortgage Loan as of the Funding Date is determined
after application of payments of principal due on or before the Funding Date
whether or not collected. Therefore, payments of scheduled principal and
interest prepaid for a due date beyond the Funding Date shall not be applied to
the principal balance as of the Funding Date. Such prepaid amounts shall be the
property of Purchaser. Seller shall hold any such prepaid amounts for the
benefit of Purchaser for subsequent remittance by Seller to Purchaser. All
scheduled payments of principal due on or before the Funding Date and collected
by Seller after the Funding Date shall belong to Seller.
Section 2.02 Possession of Mortgage Files.
Upon the sale of any Mortgage Loan, the ownership of such Mortgage Loan,
including the Mortgage Note, the Mortgage, the contents of the related Mortgage
File and all rights, benefits, payments, proceeds and obligations arising
therefrom or in connection therewith, shall then be vested in the Purchaser, and
the ownership of all records and documents with respect to such Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and, to the extent retained by the Seller, shall be
retained and maintained, in trust, by the Seller at the will of the Purchaser in
a custodial capacity only. The contents of such Mortgage File not delivered to
the Purchaser or Purchaser's designee are and shall be held in trust by the
Seller for the benefit of the Purchaser as the owner thereof and the Sellers'
possession of the contents of each Mortgage File so retained is at the will of
the Purchaser for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Seller is in a custodial capacity only.
Mortgage Files shall be maintained separately from the other books and records
of the Seller. Each Seller shall release from its custody of the contents of any
Mortgage File only in accordance with written instructions from the Purchaser,
except where such release is required as incidental to the Servicer's servicing
of the Mortgage Loans or is in connection with a repurchase of any such Mortgage
Loan pursuant to Section 3.04.
Any documents released to a Seller or the Servicer in connection with the
foreclosure or servicing of any Mortgage Loan shall be held by such Person in
trust for the benefit of the Purchaser in accordance with this Section 2.02.
Such Person shall return to the Purchaser such documents when such Person's need
therefor in connection with such foreclosure or servicing no longer exists
(unless sooner requested by the Purchaser); provided that, if such Mortgage Loan
is liquidated, then, upon the delivery by a Seller or the Servicer to the
Purchaser of a request for the release of such documents and a certificate
certifying as to such liquidation, the Purchaser shall promptly release and, to
the extent necessary, deliver to such Person such documents.
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At the option of Puchaser, the Mortgage Files shall be held by the Custodian in
accordance with the terms of the Custodial Agreement.
Section 2.03 Books and Records.
The sale of each of its Mortgage Loans shall be reflected on the applicable
Seller's balance sheet and other financial statements as a sale of assets by the
applicable Seller. Each Seller shall be responsible for maintaining, and shall
maintain, a complete set of books and records for the Mortgage Loans it conveyed
to the Purchaser which shall be clearly marked to reflect the sale of each
Mortgage Loan to the Purchaser and the ownership of each Mortgage Loan by the
Purchaser.
Section 2.04 Defective Documents; Delivery of Mortgage Loan Documents.
Subsequent to the Funding Date, if the Purchaser or either Seller finds any
document or documents constituting a part of a Mortgage File to be defective or
missing in any material respect (in this Section 2.04, a "Defect"), the party
discovering such Defect shall promptly so notify the other parties. If the
Defect pertains to the Mortgage Note or the Mortgage, then the applicable Seller
shall have a period of 45 days within which to correct or cure any such defect
after the earlier of such Seller's discovery of same or such Seller being
notified of same. If such Defect can ultimately be cured but is not reasonably
expected to be cured within such 45 day period, such Seller shall have such
additional time as is reasonably determined by the Purchaser to cure or correct
such Defect provided that such Seller has commenced curing or correcting such
Defect and is diligently pursuing same. If the Defect pertains to any other
document constituting a part of a Mortgage File, then such Seller shall have a
period of 90 days within which to correct or cure any such Defect after the
earlier of such Seller's discovery of same or such Seller being notified of
same. If such Defect can ultimately be cured but is not reasonably expected to
be cured within the 90 day period, then such Seller shall have such additional
time as is reasonably determined by the Purchaser to cure or correct such Defect
provided such Seller has commenced curing or correcting such Defect and is
diligently pursuing same. Cendant Mortgage hereby covenants and agrees that, if
any material Defect cannot be corrected or cured, the related Mortgage Loan
shall automatically constitute, upon the expiration of the applicable cure
period described above and without any further action by any other party, a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with Section 3.04(3).
15
The applicable Seller will, with respect to each Mortgage Loan to be
purchased by the Purchaser, deliver and release to the Purchaser the Legal
Documents as set forth in Section 2.01. If the applicable Seller cannot deliver
an original Mortgage with evidence of recording thereon, original assumption,
modification and substitution agreements with evidence of recording thereon or
an original intervening assignment with evidence of recording thereon within the
applicable time periods, then such Seller shall promptly deliver to the
Purchaser such original Mortgages and original intervening assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, except in cases where the original Mortgage or original
intervening assignments are retained permanently by the recording office, in
which case, such Seller shall deliver a copy of such Mortgage or intervening
assignment, as the case may be, certified to be a true and complete copy of the
recorded original thereof.
If the original Mortgage was not delivered pursuant to the preceding
paragraph, then the applicable Seller shall use its best efforts to promptly
secure the delivery of such originals and shall cause such originals to be
delivered to the Purchaser promptly upon receipt thereof. Notwithstanding the
foregoing, if the original Mortgage, original assumption, modification, and
substitution agreements, the original of any intervening assignment or the
original policy of title insurance is not so delivered to the Purchaser within
180 days following the Funding Date, then, upon written notice by the Purchaser
to Cendant Mortgage, the Purchaser may, in its sole discretion, then elect (by
providing written notice to Cendant Mortgage) to treat such Mortgage Loan as a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with Section 3.04(3). The fact that the Purchaser has conducted or
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect its right to demand repurchase or any other remedies provided
in this Agreement.
At the Purchaser's request, the Assignments shall be promptly recorded in
the name of the Purchaser or in the name of a Person designated by the Purchaser
in all appropriate public offices for real property records. If any such
Assignment is lost or returned unrecorded because of a defect therein, then the
applicable Seller shall promptly prepare a substitute Assignment to cure such
defect and thereafter cause each such Assignment to be duly recorded. All
recording fees related to such a one-time recordation of the Assignments to or
by a Seller shall be paid by the applicable Seller.
Section 2.05 Transfer of Mortgage Loans.
Subject to the provisions of this Section 2.05, the Purchaser shall have
the right, without the consent of the Sellers, at any time and from time to
time, to assign any of the Mortgage Loans and all or any part of its interest
under this Agreement and designate any person to exercise any rights of the
Purchaser hereunder, and the assignees or designees shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans.
The Sellers recognize that the Mortgage Loans may be divided into "packages" for
resale ("Mortgage Loan Packages").
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All of the provisions of this Agreement shall inure to the benefit of the
Purchaser and any such assignees or designees. All references to the Purchaser
shall be deemed to include its assignees or designees. Utilizing resources
reasonably available to the Seller without incurring any cost except the
Seller's overhead and employees' salaries, the applicable Seller shall cooperate
in any such assignment of the Mortgage Loans and this Agreement; provided that
the Purchaser shall bear all costs associated with any such assignment of the
Mortgage Loans and this Agreement other than such Seller's overhead or
employees' salaries.
The Servicer and the Purchaser acknowledge that the Servicer shall continue
to remit payments to the Purchaser on the Remittance Date after the transfer of
the Mortgage Loans, unless the Servicer was notified in writing of the new
record owner of the Mortgage Loans prior to the immediately preceding Record
Date, in which case, the Servicer shall remit to the new record owner (or
trustee or master servicer, as the case may be) of the Mortgage Loans.
Any prospective assignees of the Purchaser who have entered into a
commitment to purchase any of the Mortgage Loans may review and underwrite the
Servicer's servicing and origination operations, upon reasonable prior notice to
the Servicer, and the Servicer shall cooperate with such review and underwriting
to the extent such prospective assignees request information or documents that
are reasonably available and can be produced without unreasonable expense or
effort. The Servicer shall make the Mortgage Files related to the Mortgage Loans
held by the Servicer available at the Servicer's principal operations center for
review by any such prospective assignees during normal business hours upon
reasonable prior notice to the Servicer (in no event less than 5 Business Days
prior notice). The Servicer may, in its sole discretion, require that such
prospective assignees sign a confidentiality agreement with respect to such
information disclosed to the prospective assignee which is not available to the
public at large and a release agreement with respect to its activities on the
Servicer's premises.
The Servicer shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, the Servicer shall
note transfers of Mortgage Loans. The Purchaser may, subject to the terms of
this Agreement, sell and transfer, in whole or in part, any or all of the
Mortgage Loans; provided that no such sale and transfer shall be binding upon
the Servicer unless such transferee shall agree in writing to an Assignment,
Assumption and Recognition Agreement, in substantially the form of Exhibit 2.05
attached hereto, and an executed copy of such Assignment, Assumption and
Recognition Agreement shall have been delivered to the Servicer. The Servicer
shall evidence its acknowledgment of any transfers of the Mortgage Loans to any
assignees of the Purchaser by executing such Assignment, Assumption and
Recognition Agreement. The Servicer shall xxxx its books and records to reflect
the ownership of the Mortgage Loans by any such assignees, and the previous
Purchaser shall be released from its obligations hereunder accruing after the
date of transfer to the extent such obligations relate to Mortgage Loans sold by
the Purchaser. This Agreement shall be binding upon and inure to the benefit of
the Purchaser and the Servicer and their permitted successors, assignees and
designees.
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ARTICLE III: REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section 3.01 Representations and Warranties of each Seller.
Each Seller, as to itself, represents, warrants and covenants to the
Purchaser that as of each Funding Date or as of such date specifically provided
herein:
(1) Due Organization. The Seller is an entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, and has
all licenses necessary to carry on its business now being conducted and is
licensed, qualified and in good standing under the laws of each state where a
Mortgaged Property is located or is otherwise exempt under applicable law from
such qualification or is otherwise not required under applicable law to effect
such qualification; no demand for such qualification has been made upon the
Seller by any state having jurisdiction and in any event the Seller is or will
be in compliance with the laws of any such state to the extent necessary to
enforce each Mortgage Loan and with respect to Cendant Mortgage, service each
Mortgage Loan in accordance with the terms of this Agreement.
(2) Due Authority. Cendant Mortgage had the full power and authority and legal
right to originate the Mortgage Loans that it originated, if any, and to acquire
the Mortgage Loans that it acquired. The Seller has the full power and authority
to hold each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate, all transactions contemplated by
this Agreement. The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by the
Purchaser, constitutes a legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, receivership, conservatorship, insolvency,
moratorium and other laws relating to or affecting creditors' rights generally
or the rights of creditors of banks and to the general principles of equity
(whether such enforceability is considered in a proceeding in equity or at law).
(3) No Conflict. The execution and delivery of this Agreement, the acquisition
or origination, as applicable, of the Mortgage Loans by the Seller, the sale of
the Mortgage Loans, the consummation of the transactions contemplated hereby, or
the fulfillment of or compliance with the terms and conditions of this
Agreement, will not conflict with or result in a breach of any of the terms,
conditions or provisions of the Seller's organizational documents and bylaws or
any legal restriction or any agreement or instrument to which the Seller is now
a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans;
(4) Ability to Perform. The Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(5) No Material Default. Neither the Seller nor any of its Affiliates is in
material default under any agreement, contract, instrument or indenture of any
nature whatsoever to which the Seller or any of its Affiliates is a party or by
which it (or any of its assets) is bound, which default would have a material
adverse effect on the ability of the Seller to perform under this Agreement,
nor, to the best of the Seller's knowledge, has any event occurred which, with
notice, lapse of time or both, would constitute a default under any such
agreement, contract, instrument or indenture and have a material adverse effect
18
on the ability of the Seller to perform its obligations under this Agreement;
(6) Financial Statements. Cendant Mortgage has delivered to the Purchaser
financial statements as to its fiscal year ended DECEMBER 31, 1999. Except as
has previously been disclosed to the Purchaser in writing: (a) such financial
statements fairly present the results of operations and changes in financial
position for such period and the financial position at the end of such period of
Cendant Mortgage and its subsidiaries; and (b) such financial statements are
true, correct and complete as of their respective dates and have been prepared
in accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto. The
Trust has delivered to the Purchaser financial statements dated as of DECEMBER
31, 1999 and a copy of its Offering Circular dated May 21, 1998 (the "Trust
Financials") and such Trust Financials fairly present the results of operations
and changes in financial position for such period and the financial position at
the end of such period of the Trust. Except as has previously been disclosed to
the Purchaser in writing, there has been no change in such Trust Financials
since their date and the Trust is not aware of any errors or omissions therein;
(7) No Change in Business. There has been no change in the business, operations,
financial condition, properties or assets of the applicable Seller since (i) in
the case of Cendant Mortgage, the date of its financial statements and (ii) in
the case of the Trust, the date of delivery of the Trust Financials, that would
have a material adverse effect on the ability of the applicable Seller to
perform its obligations under this Agreement;
(8) No Litigation Pending. There is no action, suit, proceeding or investigation
pending or, to the best of the Seller's knowledge, threatened, against the
Seller, which, either in any one instance or in the aggregate, if determined
adversely to the Seller would adversely affect the sale of the Mortgage Loans to
the Purchaser or the execution, delivery or enforceability of this Agreement or
result in any material liability of the Seller, or draw into question the
validity of this Agreement, or have a material adverse effect on the financial
condition of the Seller;
(9) No Consent Required. 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 delivery of the Mortgage Files to the Purchaser, the sale of the Mortgage
Loans to the Purchaser or the consummation of the transactions contemplated by
this Agreement or, if required, such approval has been obtained prior to the
Funding Date;
(10) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(11) No Broker. The Seller has not dealt with any broker or agent or anyone else
who might be entitled to a fee or commission in connection with this
transaction; and
(12) No Untrue Information. Neither this Agreement nor any statement, report or
other agreement, document or instrument furnished or to be furnished pursuant to
this Agreement contains or will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to make the statements contained
therein not misleading.
Section 3.02 Representations and Warranties of the Servicer.
19
The Servicer represents, warrants and covenants to the Purchaser that as of
the Funding Date or as of such date specifically provided herein:
(1) Ability to Service. The Servicer is an approved seller/servicer for FNMA and
FHLMC in good standing and is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Section 203 of the National Housing Act, with
facilities, procedures and experienced personnel necessary for the servicing of
mortgage loans of the same type as the Mortgage Loans. No event has occurred
that would make the Servicer unable to comply with FNMA or FHLMC eligibility
requirements or that would require notification to either FNMA or FHLMC;
(2) Collection Practices. The collection practices used by the Servicer with
respect to each Mortgage Note and Mortgage have been in all respects legal,
proper and prudent in the mortgage servicing business;
(3) Due Organization. The Servicer is an entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, and has
all licenses necessary to carry on its business now being conducted and is
licensed, qualified and in good standing under the laws of each state where a
Mortgaged Property is located or is otherwise exempt under applicable law from
such qualification or is otherwise not required under applicable law to effect
such qualification; no demand for such qualification has been made upon the
Servicer by any state having jurisdiction and in any event the Servicer is or
will be in compliance with the laws of any such state to the extent necessary to
enforce each Mortgage Loan and service each Mortgage Loan in accordance with the
terms of this Agreement.
(4) Due Authority. Servicier has the full power and authority to execute,
deliver and perform, and to enter into and consummate, all transactions
contemplated by this Agreement. The Servicer has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a legal, valid and binding obligation of
the Servicer, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium and other laws relating to or affecting creditors' rights
generally or the rights of creditors of banks and to the general principles of
equity (whether such enforceability is considered in a proceeding in equity or
at law).
(5) No Conflict. The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, will not conflict with or
result in a breach of any of the terms, conditions or provisions of the
Servicer's organizational documents and bylaws or any legal restriction or any
agreement or instrument to which the Servicer 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 violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject, or impair
the ability of the Purchaser to realize on the Mortgage Loans;
(6) Ability to Perform. The Servicer does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(7) No Material Default. Neither the Servicer nor any of its Affiliates is in
material default under any agreement, contract, instrument or indenture of any
nature whatsoever to which the Servicer or any of its Affiliates is a party or
by which it (or any of its assets) is bound, which default would have a material
adverse effect on the ability of the Servicer to perform under this Agreement,
nor, has any
20
event occurred which, with notice, lapse of time or both, would constitute a
default under any such agreement, contract, instrument or indenture and have a
material adverse effect on the ability of the Servicer to perform its
obligations under this Agreement;
(8) Financial Statements. Servicer has delivered to the Purchaser financial
statements as to its fiscal year ended DECEMBER 31, 1999. Except as has
previously been disclosed to the Purchaser in writing: (a) such financial
statements fairly present the results of operations and changes in financial
position for such period and the financial position at the end of such period of
Servicer and its subsidiaries; and (b) such financial statements are true,
correct and complete as of their respective dates and have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
(9) No Change in Business. There has been no change in the business, operations,
financial condition, properties or assets of the Servicer since the date of its
financial statements that would have a material adverse effect on the ability of
the Servicer to perform its obligations under this Agreement;
(10) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Servicer's knowledge, threatened,
against the Servicer, which, either in any one instance or in the aggregate, if
determined adversely to the Servicer would adversely affect the sale of the
Mortgage Loans to the Purchaser or the execution, delivery or enforceability of
this Agreement or result in any material liability of the Servicer, or draw into
question the validity of this Agreement, or have a material adverse effect on
the financial condition of the Servicer;
(11) No Consent Required. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Servicer of or compliance by the Servicer with this Agreement
or the consummation of the transactions contemplated by this Agreement or, if
required, such approval has been obtained prior to the Funding Date;
(12) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Servicer;
(13) No Broker. The Servicer has not dealt with any broker or agent or anyone
else who might be entitled to a fee or commission in connection with this
transaction; and
(14) No Untrue Information. Neither this Agreement nor any statement, report or
other agreement, document or instrument furnished or to be furnished pursuant to
this Agreement contains or will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to make the statements contained
therein not misleading.
Section 3.03 Representations and Warranties as to Individual Mortgage Loans.
With respect to each Mortgage Loan, the applicable Seller hereby makes the
following representations and warranties to the Purchaser on which the Purchaser
specifically relies in purchasing such Mortgage Loan. Such representations and
warranties speak as of the Funding Date unless otherwise indicated, but shall
survive any subsequent transfer, assignment or conveyance of such Mortgage
Loans:
(1) Mortgage Loan as Described. Such Mortgage Loan complies with the terms and
conditions set
21
forth herein, and all of the information set forth with respect thereto on the
Mortgage Loan Schedule is true and correct in all material respects;
(2) Complete Mortgage Files. The instruments and documents specified in Section
2.02 with respect to such Mortgage Loan have been delivered to the Purchaser in
compliance with the requirements of Article II. The Seller is in possession of a
Mortgage File respecting such Mortgage Loan, except for such documents as have
been previously delivered to the Purchaser;
(3) Owner of Record. The Mortgage relating to such Mortgage Loan has been duly
recorded in the appropriate recording office, and the applicable Seller or
Servicer is the owner of record of such Mortgage Loan and the indebtedness
evidenced by the related Mortgage Note;
(4) Payments Current. All payments required to be made up to and including the
Funding Date for such Mortgage Loan under the terms of the Mortgage Note have
been made, such that such Mortgage Loan is not delinquent 30 days or more on the
Funding Date, and has not been so delinquent in the twelve months prior to the
Funding Date;
(5) No Outstanding Charges. There are no delinquent taxes, insurance premiums,
assessments, including assessments payable in future installments, or other
outstanding charges affecting the Mortgaged Property related to such Mortgage
Loan;
(6) Original Terms Unmodified. The terms of the Mortgage Note and the Mortgage
related to such Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except as specifically set forth in the
related Mortgage Loan Schedule;
(7) No Defenses. The Mortgage Note and the Mortgage related to such Mortgage
Loan are not subject to any right of rescission, set-off or defense, including
the defense of usury, nor will the operation of any of the terms of such
Mortgage Note and such Mortgage, or the exercise of any right thereunder, render
such Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off or defense, including the defense of usury and no such right
of rescission, set-off or defense has been asserted with respect thereto;
(8) Hazard Insurance. (a) All buildings upon the Mortgaged Property related to
such Mortgage Loan are insured by an insurer acceptable to FNMA or FHLMC against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where such Mortgaged Property is located, pursuant to
insurance policies conforming to the requirements of either Section 5.10 or
Section 5.11. All such insurance policies (collectively, the "hazard insurance
policy") contain a standard mortgagee clause naming the originator of such
Mortgage Loan, its successors and assigns, as mortgagee. Such policies are the
valid and binding obligations of the insurer, and all premiums thereon due to
date have been paid. The related Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at such Mortgagor's cost and expense, and on such
Mortgagor's failure to do so, authorizes the holder of such Mortgage to maintain
such insurance at such Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor; or (b) in the case of a condominium or PUD project
that is not covered by an individual policy, the condominium or PUD project is
covered by a "master" or "blanket" policy and there exists and is in the
Servicer's Mortgage File a certificate of insurance showing that the individual
unit that secures the first mortgage or share loan is covered under such policy.
The insurance policy contains a standard mortgagee clause naming the originator
of such Mortgage Loan (and its successors and assigns), as insured mortgagee.
Such policies are the valid and binding obligations of the insurer, and all
premiums thereon have been paid. The insurance policy provides for advance
notice to the Seller or Servicer if the policy is canceled or not renewed, or if
any
22
other change that adversely affects the Seller's interests is made; the
certificate includes the types and amounts of coverage provided, describes any
endorsements that are part of the "master" policy and would be acceptable
pursuant to the FNMA Guide;
(9) Compliance With Applicable Laws. All requirements of any federal, state or
local law (including usury, truth in lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws)
applicable to the origination and servicing of such Mortgage Loan have been
complied with in all material respects;
(10) No Satisfaction of Mortgage. The Mortgage related to such Mortgage Loan has
not been satisfied, canceled or subordinated, in whole or in part, or rescinded,
and the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or rescission;
(11) Valid First Lien. The Mortgage related to such Mortgage Loan is a valid,
subsisting and enforceable perfected first lien on the related Mortgaged
Property, including all improvements on the related Mortgaged Property, which
Mortgaged Property is free and clear of any encumbrances and liens having
priority over the first lien of the Mortgage subject only to (a) the lien of
current real estate taxes and special assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording of such Mortgage which
are acceptable to mortgage lending institutions generally, are referred to in
the lender's title insurance policy and do not adversely affect the market value
or intended use of the related Mortgaged Property, and (c) other matters to
which like properties are commonly subject which do not individually or in the
aggregate materially interfere with the benefits of the security intended to be
provided by such Mortgage or the use, enjoyment, or market value of the related
Mortgaged Property;
(12) Validity of Documents. The Mortgage Note and the Mortgage related to such
Mortgage Loan are genuine and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles (regardless whether such enforcement is considered
in a proceeding in equity or at law);
(13) Valid Execution of Documents. All parties to the Mortgage Note and the
Mortgage related to such Mortgage Loan had legal capacity to enter into such
Mortgage Loan and to execute and deliver the related Mortgage Note and the
related Mortgage and the related Mortgage Note and the related Mortgage have
been duly and properly executed by such parties;
(14) Full Disbursement of Proceeds. Such Mortgage Loan has closed and the
proceeds of such Mortgage Loan have been fully disbursed prior to the Funding
Date; provided that, with respect to any Mortgage Loan originated within the
previous 120 days, alterations and repairs with respect to the related Mortgaged
Property or any part thereof may have required an escrow of funds in an amount
sufficient to pay for all outstanding work within 120 days of the origination of
such Mortgage Loan, and, if so, such funds are held in escrow by the Seller, a
title company or other escrow agent;
(15) Ownership. The Mortgage Note and the Mortgage related to such Mortgage Loan
or any interest or participation therein have not been assigned, pledged or
otherwise transferred by the applicable Seller, and the Seller has good and
marketable title thereto, and the Seller is the sole owner thereof and has full
right and authority to transfer and sell such Mortgage Loan, and is transferring
such Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security
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interest;
(16) Doing Business. All parties that have had any interest in such Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) in compliance
with any and all applicable licensing requirements of the laws of the state
wherein the related Mortgaged Property is located;
(17) Title Insurance. (a) Such Mortgage Loan is covered by an ALTA lender's
title insurance policy or short form title policy acceptable to FNMA and FHLMC
(or, in jurisdictions where ALTA policies are not generally approved for use, a
lender's title insurance policy acceptable to FNMA and FHLMC), issued by a title
insurer acceptable to FNMA and FHLMC and qualified to do business in the
jurisdiction where the related Mortgaged Property is located, insuring (subject
to the exceptions contained in clauses (12)(a) and (b) above) the Seller or
Servicier, its successors and assigns as to the first priority lien of the
related Mortgage in the original principal amount of such Mortgage Loan and in
the case of ARM Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of such Mortgage
providing for adjustment to the applicable Note Rate and Monthly Payment.
Additionally, such lender's title insurance policy affirmatively insures against
encroachments by or upon the related Mortgaged Property or any interest therein
or any other adverse circumstance that either is disclosed or would have been
disclosed by an accurate survey. The Seller or Servicer is the sole insured of
such lender's title insurance policy, and such lender's title insurance policy
is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement and will inure
to the benefit of the Purchaser without any further act. No claims have been
made under such lender's title insurance policy, no prior holder of the related
Mortgage (including the Seller) has done, by act or omission, anything that
would impair the coverage of such lender's insurance policy, and, there is no
act, omission, condition, or information that would impair the coverage of such
lender's insurance policy; (b) The mortgage title insurance policy covering each
unit mortgage in a condominium or PUD project related to such Mortgage Loan
meets all requirements of FNMA and FHLMC;
(18) No Defaults. (a) There is no default, breach, violation or event of
acceleration existing under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Mortgage Loan; (b) there
is no event that, with the lapse of time, the giving of notice, or both, would
constitute such a default, breach, violation or event of acceleration; (c) the
Mortgagor(s) with respect to such Mortgage Loan is (1) not in default under any
other Mortgage Loan or (2) the subject of an Insolvency Proceeding; (d) no event
of acceleration has previously occurred, and no notice of default has been sent,
with respect to such Mortgage Loan; and (e) in no event has the Seller waived
any of its rights or remedies in respect of any default, breach, violation or
event of acceleration under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Mortgage Loan;
(19) No Mechanics' Liens. There are no mechanics' or similar liens, except such
liens as are expressly insured against by a title insurance policy, or claims
that have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property that are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(20) Location of Improvements; No Encroachments. As of the date of origination
of such Mortgage Loan, all improvements that were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of such Mortgaged Property, and no
improvements on adjoining properties encroach upon such Mortgaged Property
except
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as permitted under the terms of the FNMA Guide and the FHLMC Selling Guide; no
improvement located on or part of any Mortgaged Property is in violation of any
applicable zoning law or regulation, and all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of such Mortgaged Property, and with respect to the use and occupancy of the
same, including certificates of occupancy, have been made or obtained from the
appropriate authorities;
(21) Origination; Payment Terms. Principal payments on such Mortgage Loan
commenced or will commence no more than 60 days after funds were disbursed in
connection with such Mortgage Loan. If the interest rate on the related Mortgage
Note is adjustable, the adjustment is based on the Index set forth on the
related Mortgage Loan Schedule. The related Mortgage Note is payable on the
first day of each month in arrears, in accordance with the payment terms
described on the related Mortgage Loan Schedule;
(22) Due On Sale. Except as noted otherwise on the Mortgage Loan Schedule, the
related Mortgage contains the usual and customary "due-on-sale" clause or other
similar provision for the acceleration of the payment of the Unpaid Principal
Balance of such Mortgage Loan if the related Mortgaged Property or any interest
therein is sold or transferred without the prior consent of the mortgagee
thereunder;
(23) Prepayment Penalty. Except as noted otherwise on the Mortgage Loan
Schedule, such Mortgage Loan is not subject to any Prepayment Penalty;
(24) Mortgaged Property Undamaged; No Condemnation. As of the Funding Date, the
related Mortgaged Property is free of material damage and waste and there is no
proceeding pending for the total or partial condemnation thereof;
(25) Customary Provisions. The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) in the case
of a Mortgage, otherwise by judicial foreclosure;
(26) Conformance With Underwriting Standards. Such Mortgage Loan was
underwritten in accordance with underwriting standards of Cendant Mortgage;
(27) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged
Property on forms and with riders approved by FNMA and FHLMC, signed prior to
the approval of such Mortgage Loan application by an appraiser, duly appointed
by the originator of such Mortgage Loan, whose compensation is not affected by
the approval or disapproval of such Mortgage Loan and who met the minimum
qualifications of FNMA and FHLMC for appraisers;
(28) Deeds of Trust. If the related Mortgage constitutes a deed of trust, then a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under such
deed of trust, except in connection with a trustee's sale after default by the
related Mortgagor;
(29) LTV; Primary Mortgage Insurance Policy. If such Mortgage Loan had a
Loan-to-Value Ratio of more than 80% at origination, and is not originated under
an additional collateral mortgage loan program, such Mortgage Loan is and will
be subject to a Primary Insurance Policy issued by a Qualified Mortgage Insurer,
which insures the Seller or Servicer, its successors and assigns and
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insureds in the amount set forth on the Mortgage Loan Schedule. All provisions
of such Primary Insurance Policy have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. Any related Mortgage subject to any such Primary Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance for the time
period required by law and to pay all premiums and charges in connection
therewith. As of the date of origination, the Loan-to-Value Ratio of such
Mortgage Loan is as specified in the applicable Mortgage Loan Schedule;
(30) Occupancy. As of the date of origination of such Mortgage Loan, the related
Mortgaged Property is lawfully occupied under applicable law;
(31) Supervision and Examination by a Federal or State Authority. Each Mortgage
Loan either was (a) closed in the name of the Cendant Mortgage, or (b) closed in
the name of another entity that is either a savings and loan association, a
savings bank, a commercial bank, credit union, insurance company or an
institution which is supervised and examined by a federal or state authority, or
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act (a "HUD Approved
Mortgagee"), and was so at the time such Mortgage Loan was originated (Cendant
Mortgage or such other entity, the "Originator") or (c) closed in the name of a
loan broker under the circumstances described in the following sentence. If such
Mortgage Loan was originated through a loan broker, such Mortgage Loan met the
Originator's underwriting criteria at the time of origination and was originated
in accordance with the Originator's policies and procedures and the Originator
acquired such Mortgage Loan from the loan broker contemporaneously with the
origination thereof. The Mortgage Loans that the Trust is selling to Purchaser
were originated by or on behalf of Cendant Mortgage and subsequently assigned to
the Trust.
(32) Adjustments. All of the terms of the related Mortgage Note pertaining to
interest rate adjustments, payment adjustments and adjustments of the
outstanding principal balance, if any, are enforceable and such adjustments will
not affect the priority of the lien of the related Mortgage; all such
adjustments on such Mortgage Loan have been made properly and in accordance with
the provisions of such Mortgage Loan;
(33) Insolvency Proceedings; Soldiers' and Sailors' Relief Act. The related
Mortgagor (1) is not the subject of any Insolvency Proceeding; and (2) has not
notified the Seller of any relief requested by or allowed to such Mortgagor
under the Soldiers' and Sailors' Civil Relief Act of 1940;
(34) FNMA/FHLMC Documents. Such Mortgage Loan was closed on standard FNMA or
FHLMC documents or on such documents otherwise acceptable to them.
(35) Acceptable Investment. To the best of Seller's knowledge, there is no
circumstance or condition with respect to the related Mortgage File, Mortgage,
Mortgaged Property, Mortgagor or Mortgagor's credit standing, including but not
limited to `limited income documentation programs' whereby the lending decision
is based upon factors other than the Mortgagor's income, that can reasonably be
expected to cause private institutional investors to regard such Mortgage Loan
as an unacceptable investment, cause such Mortgage Loan to become delinquent, or
adversely affect the value or marketability of such Mortgage Loan;
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Section 3.04 Repurchase.
(1) It is understood and agreed that the representations and warranties set
forth in Sections 3.01, 3.02 and 3.03 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment or the examination of any Mortgage File.
(2) Upon discovery by either of the Sellers or the Purchaser of a breach of any
of the representations and warranties contained in Sections 3.01, 3.02 or 3.03
that materially and adversely affects the value of a Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other.
(3) Unless permitted a greater period of time to cure as set forth in Section
2.04, the applicable Seller shall have a period of 60 days from the earlier of
either discovery by or receipt of written notice from the Purchaser to the
Seller of any breach of any of the representations and warranties contained in
Sections 3.01, 3.02 or 3.03 that materially and adversely affects the value of a
Mortgage Loan (a "Defective Mortgage Loan"; provided that "Defective Mortgage
Loan" shall also include any Mortgage Loan treated or designated as such in
accordance with Section 2.04) within which to correct or cure such breach. If
such breach can ultimately be cured but is not reasonably expected to be cured
within the 60-day period, then the applicable Seller shall have such additional
time, if any, as is reasonably determined by the Purchaser to cure such breach
provided that the Seller has commenced curing or correcting such breach and is
diligently pursuing same. Each Seller hereby covenants and agrees with respect
to each Mortgage Loan conveyed by it that, if any breach relating thereto cannot
be corrected or cured within the applicable cure period or such additional time,
if any, as is reasonably determined by the Purchaser, then such Seller shall, at
the direction of the Purchaser, repurchase the Defective Mortgage Loan at the
applicable Repurchase Price.
(4) Any repurchase of a Defective Mortgage Loan required hereunder shall be
accomplished by payment of the applicable Repurchase Price within 3 Business
Days of expiration of the applicable time period referred to above in paragraph
3.04(3) by wire transfer of immediately available funds directly to the
Purchaser's Account. It is understood and agreed that the obligations of a
Seller (a) set forth in this Section 3.04(4) to cure any breach of such Seller's
representations and warranties contained in Section 3.03 or to repurchase the
Defective Mortgage Loan(s) and (b) set forth in Section 9.01 to indemnify the
Purchaser in connection with any breach of a Seller's representations and
warranties contained in Section 3.03 shall constitute the sole remedies of the
Purchaser respecting a breach of such representations and warranties.
(5) The parties further agree that, in recognition of the Trust's rights against
Cendant Mortgage with respect to the Mortgage Loans acquired by it from Cendant
Mortgage and conveyed to the Purchaser hereunder, the Purchaser shall have the
right to cause Cendant Mortgage to repurchase directly any Defective Mortgage
Loan (other than as a result of a breach by the Trust of Section 3.03 (3) or
3.03(15) hereof, in which case the Purchaser shall have the right to cause the
Trust to repurchase directly the Defective Mortgage Loan) acquired hereunder by
the Purchaser from the Trust.
Section 3.05 Certain Covenants of each Seller and the Servicer.
Without incurring undue effort or any cost except the Seller's overhead or
employees' salaries, each Seller shall take reasonable steps to assist the
Purchaser, if the Purchaser so requests, in securitizing the Mortgage Loans and
selling undivided interests in such Mortgage Loans in a public offering or
private placement or selling participating interests in such Mortgage Loans,
which steps
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may include, (a) providing any information relating to the Mortgage Loans
reasonably necessary to assist in the preparation of any disclosure documents,
(b) providing information relating to delinquencies and defaults with respect to
the Servicer's servicing portfolio (or such portion thereof as is similar to the
Mortgage Loans), (c) entering into any other servicing, custodial or other
similar agreements, that are consistent with the provisions of this Agreement,
and which contain such provisions as are customary in securitizations rated
"AAA" (including a securitization involving a REMIC) (a "Securitization"), and
(d) providing as of the date of such securitization representations and
warranties as to the Seller and the Mortgage Loans, which are consistent with
the representations and warranties contained in this Agreement, but modified, if
necessary, to reflect changes since the Funding Date. In connection with such a
Securitization, the Purchaser may be required to engage a master servicer or
trustee to determine the allocation of payments to and make remittances to the
certificateholders, at the Purchaser's sole cost and expense. In the event that
a master servicer or trustee to determine the allocation of payments to and make
remittances to the certificateholders is requested by the Purchaser, the
Servicer agrees to service the Mortgage Loans in accordance with the reasonable
and customary requirements of such Securitization, which may include the
Servicer's acting as a subservicer in a master servicing arrangement. With
respect to the then owners of the Mortgage Loans, the Servicer shall thereafter
deal solely with such master servicer or trustee, as the case may be with
respect to such Mortgage Loans which are subject to the Securitization and shall
not be required to deal with any other party with respect to such Mortgage
Loans.The cost of such securitization shall be borne by the Purchaser, other
than the Seller's overhead or employees' salaries.
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ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND
CONDITIONS PREDCEDENT TO FUNDING
Section 4.01 Representations and Warranties.
The Purchaser represents, warrants and covenants to the Seller that as of
each Funding Date or as of such date specifically provided herein:
(1) Due Organization. The Purchaser is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon the Purchaser by any state having jurisdiction and in any
event the Purchaser is or will be in compliance with the laws of any such state
to the extent necessary to enforce each Mortgage Loan.
(2) Due Authority. The Purchaser had the full power and authority and legal
right to acquire the Mortgage Loans that it acquired. The Purchaser has the full
power and authority to hold each Mortgage Loan, to sell each Mortgage Loan and
to execute, deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Purchaser has duly authorized
the execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, receivership,
conservatorship, insolvency, moratorium and other laws relating to or affecting
creditors' rights generally or the rights of creditors of banks and to the
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law);
(3) No Conflict. None of the execution and delivery of this Agreement, the
acquisition or origination, as applicable, of the Mortgage Loans by the
Purchaser, the purchase of the Mortgage Loans, the consummation of the
transactions contemplated hereby, or the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Purchaser's organizational
documents and bylaws or any legal restriction or any agreement or instrument to
which the Purchaser 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 violation of any law, rule, regulation, order, judgment or decree to which
the Purchaser or its property is subject, or impair the ability of the Purchaser
to realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
(4) Ability to Perform. The Purchaser does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(5) No Material Default. The Purchaser is not in material default under any
agreement, contract, instrument or indenture of any nature whatsoever to which
the Purchaser is a party or by which it (or any of its assets) is bound, which
default would have a material adverse effect on the ability of the Purchaser to
perform under this Agreement, nor, to the best of the Purchaser's knowledge, has
any event occurred which, with notice, lapse of time or both) would constitute a
default under any such agreement, contract, instrument or indenture and have a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement;
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(6) No Change in Business. There has been no change in the business, operations,
financial condition, properties or assets of the Purchaser since the date of the
Purchaser's financial statements that would have a material adverse effect on
the ability of the Purchaser to perform its obligations under this Agreement;
(7) Litigation Pending. There is no action, suit, proceeding or investigation
pending or, to the best of the Purchaser's knowledge, threatened, against the
Purchaser, which, either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans or the execution, delivery or enforceability of this Agreement or result
in any material liability of the Purchaser, or draw into question the validity
of this Agreement, or the Mortgage Loans or have a material adverse effect on
the financial condition of the Purchaser;
(8) Broker. The Purchaser has not dealt with any broker or agent or anyone else
who might be entitled to a fee or commission in connection with this
transaction.
(9) No Consent Required. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement, the purchase of the Mortgage Loans from the Seller or the
consummation of the transactions contemplated by this Agreement or, if required,
such approval has been obtained prior to the Funding Date;
(10) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Purchaser; and
(11) Non-Petition Agreement. The Purchaser covenants and agrees that it shall
not, prior to the date which is one year and one day (or if longer, the
applicable preference period then in effect) after the payment in full of all
rated obligations of Xxxxxx'x Gate Residential Mortgage Trust, acquiesce,
petition or otherwise, directly or indirectly, invoke or cause Xxxxxx'x Gate
Residential Mortgage Trust to invoke the process of any governmental authority
for the purpose of commencing or sustaining a case against Xxxxxx'x Gate
Residential Mortgage Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of Xxxxxx'x Gate Residential Mortgage
Trust. This covenant and agreement shall be binding upon the Purchaser and any
assignee or transferee of the Purchaser.
(12) No Untrue Information. Neither this Agreement nor any statement, report or
other agreement, document or instrument furnished or to be furnished pursuant to
this Agreement contains or will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to make the statements contained
therein not misleading.
(13) The Purchaser agrees that it shall not solicit any Mortgagors (in writing
or otherwise) to refinance any of the Mortgage Loans; provided that mass
advertising or mailings (such as placing advertisements on television, on radio,
in magazines or in newspapers or including messages in billing statements) that
are not exclusively directed towards the Mortgagors shall not constitute
solicitation and shall not violate this covenant.
Section 4.02. Conditions Precedent to Closing.
Each purchase of Mortgage Loans hereunder shall be subject to each of the
following conditions:
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(a) All of the representations and warranties of Seller under the Cendant
Guide, and of Seller and Purchaser under this Agreement shall be true
and correct as of the Funding Date, and no event shall have occurred
which, with notice or the passage of time, would constitute an Event of
Default under this Agreement or under the Cendant Guide;
(b) Purchaser shall have received, or Purchaser's attorneys shall have
received in escrow, all closing documents as specified herein, in such
forms as are agreed upon and acceptable to Purchaser, duly executed by
all signatories other than Purchaser as required pursuant to the
respective terms thereof;
(c) All other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, Purchaser shall pay to Seller on each
Funding Date the applicable Purchase Price as provided herein.
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ARTICLE V: ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 5.01 Cendant Mortgage to Act as Servicer; Servicing Standards;
Additional Documents; Consent of the Purchaser.
(1) The Servicer, as independent contract servicer, shall service and administer
the Mortgage Loans and REO Property from and after each Funding Date in
accordance with the terms and provisions of the Mortgage Loans, applicable law
and the terms and provisions of this Agreement for and on behalf of, and in the
best interests of, the Purchaser (without taking into account any relationship
the Servicer may have with any Mortgagor or other Person, the participation, if
any, of the Servicer in any financing provided in connection with the sale of
any Mortgaged Property, or the Servicer's obligation to advance any expenses or
incur any costs in the performance of its duties hereunder) in accordance with a
standard that is not less than the higher of (a) the same care, skill, prudence
and diligence with which it services similar assets held for its own or its
Affiliates' account and (b) the same care, skill, prudence and diligence with
which it services similar assets for third party institutional investors, in
each case giving due consideration to customary and usual standards of practice
of prudent institutional mortgage loan servicers utilized with respect to
mortgage loans comparable to the Mortgage Loans. Subject to the foregoing
standards, in connection with such servicing and administration, the Servicer
shall seek to maximize the timely recovery of principal and interest on the
Mortgage Notes; provided that nothing contained herein shall be construed as an
express or implied guarantee by the Servicer of the collectibility of payments
on the Mortgage Loans or shall be construed as impairing or adversely affecting
any rights or benefits specifically provided by this Agreement to the Seller,
including with respect to Servicing Fees.
(2) To the extent consistent with Section 5.01(1) and further subject to any
express limitations set forth in this Agreement, the Servicer (acting alone or,
solely in the circumstances permitted hereunder, acting through a subservicer)
shall have full power and authority to do or cause to be done any and all things
that it may deem necessary or desirable in connection with such servicing and
administration, including the power and authority (a) to execute and deliver, on
behalf of the Purchaser, customary consents or waivers and other instruments and
documents (including estoppel certificates), (b) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages,
(c) to submit claims to collect any Insurance Proceeds and Liquidation Proceeds,
(d) to consent to the application of any Insurance Proceeds or Condemnation
Proceeds to the restoration of the applicable Mortgaged Property or otherwise,
(e) to bring an action in a court of law, including an unlawful detainer action,
to enforce rights of the Purchaser with respect to any Mortgaged Property, (f)
to execute and deliver, on behalf of the Purchaser, documents relating to the
management, operation, maintenance, repair, leasing, marketing and sale of any
Mortgaged Property or any REO Property, and (g) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that the Servicer shall not take any action not provided
for in this Agreement that is materially inconsistent with or materially
prejudices the interest of the Purchaser in any Mortgage Loan or under this
Agreement. If reasonably requested by the Servicer, the Purchaser shall furnish
the Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to service and administer the
Mortgage Loans and the REO Properties, including documents relating to the
foreclosure, receivership, management, operation, maintenance, repair, leasing,
marketing and sale (in foreclosure or otherwise) of any Mortgaged Property or
any REO Property. Nothing contained in this Agreement shall limit the ability of
the Servicer to lend money to (whether on a secured or unsecured basis), and
otherwise generally engage in
32
any kind of business or dealings with, any Mortgagor as though the Servicer were
not a party to this Agreement or to the transactions contemplated hereby.
(3) Notwithstanding anything to the contrary contained herein:
(a) the Servicer acknowledges that the Purchaser or its designee will
retain title to, and ownership of, the Mortgage Loans and the REO Properties and
that the Servicer does not hereby acquire any title to, security interest in, or
other rights of any kind in or to any Mortgage Loan or REO Property or any
portion thereof;
(b) the Servicer shall not file any lien or any other encumbrance on,
exercise any right of setoff against, or attach or assert any claim in or on any
Mortgage Loan or REO Property, unless authorized pursuant to a judicial or
administrative proceeding or a court order;
(c) the Servicer shall, in servicing the Mortgage Loans, follow and
comply with the servicing guidelines established by FNMA, provided that the
Servicer shall specifically notify the Purchaser in writing and obtain the
Purchaser's written consent prior to the Servicer taking any of the following
actions: (1) modifying, amending or waiving any of the financial terms of, or
making any other material modifications to, a Mortgage Loan, except the Servicer
may, upon the Mortgagor's request, accept a principal prepayment and re-amortize
the then remaining principal balance over the then remaining term of the loan
(resulting in a lower scheduled monthly payment but not change in the maturity
date); (2) selling any Specially Serviced Mortgage Loan or REO Property; (3)
making, with respect to any Specially Serviced Mortgage Loan or REO Property,
Servicing Advances (irrespective of whether non-recoverable); provided that the
Servicer shall not be required to so advise the Purchaser to the extent that
each related Servicing Advance as to the related Mortgaged Property or REO
Property is not in excess of $10,000; (4) forgiving principal or interest on, or
permitting to be satisfied at a discount, any Mortgage Loan; (5) accepting
substitute or additional collateral, or releasing any collateral, for a Mortgage
Loan. If the Purchaser has not approved or rejected in writing any proposed
action(s) recommended by the Servicer to be taken hereunder within 20 Business
Days of the date such recommendation is made, then the Purchaser shall be deemed
to have rejected such recommended action(s) and theServicer shall not take any
such action(s);
(d) the Servicer shall notify the Purchaser of any modification, waiver
or amendment of any term of any Mortgage Loan and the date thereof and shall
deliver to the Purchaser, for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment
promptly following the execution thereof;
(e) the Servicer shall remain primarily liable for the full performance
of its obligations hereunder notwithstanding any appointment by the Servicer of
a subservicer or subservicers hereunder; and
(f) the Purchaser may at any time and from time to time, in its sole
discretion, upon 10 Business Days written notice to the Servicer, terminate the
Servicer's servicing obligations hereunder with respect to (1) any REO Property
or (2) any Mortgage Loan that, in accordance with the Purchaser's internal
credit classification criteria, has been classified as "doubtful" or a "loss."
Upon the effectiveness of any such termination of the Servicer's servicing
obligations with respect to any such REO Property or Mortgage Loan, the Servicer
shall deliver all agreements, documents, and instruments related thereto to the
Purchaser, in accordance with applicable law.
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Section 5.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Servicer 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 and the terms and provisions of any related Primary Insurance Policy,
follow such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans, which procedures shall in any event comply
with the servicing standards set forth in Section 5.01. Furthermore, the
Servicer shall ascertain and estimate annual ground rents, taxes, assessments,
fire and hazard insurance premiums, mortgage insurance premiums, and all other
charges that, as provided in the Mortgages, will become due and payable to the
end that the installments payable by the Mortgagors will be sufficient to pay
such charges as and when they become due and payable.
Section 5.03 Collection of Mortgage Loan Payments.
The Servicer shall, within five (5) calendar days following each Record
Date, deliver to the Purchaser monthly reports (substantially in the form of
Exhibit 5.03(a) and Exhibit 5.03(b) attached hereto) with respect to all
Specially Serviced Mortgage Loans. In addition, the Servicer shall, within one
(1) Business Day following the occurrence of any foreclosure sale with respect
to any Mortgaged Property, deliver to the Purchaser a notice of foreclosure sale
substantially in the form of Exhibit 5.03(c) attached hereto.
Section 5.04 Establishment of Collection Account; Deposits in Collection
Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Collection Accounts,
in the form of time deposit or demand accounts constituting Eligible Accounts,
with any funds in excess of the current FDIC established insurance limits
invested in Permitted Investments. The creation of any Collection Account shall
be evidenced by a certification in the form of Exhibit 5.04-1 attached hereto,
in the case of an account established with the Servicer, or a letter agreement
in the form of Exhibit 5.04-2 attached hereto, in the case of an account held by
a depository other than the Servicer. In either case, a copy of such
certification or letter agreement shall be furnished to the Purchaser.
The Servicer shall deposit in the Collection Account on a daily basis,
within two Business Days after receipt (or as otherwise required pursuant to
this Agreement in the case of clauses (7), (8) and (9) of this Section 5.04) and
retain therein the following payments and collections received or made by it
subsequent to each Funding Date, or received by it prior to the Funding 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 Funding Date:
1) all payments on account of principal, including Principal Prepayments, on
the Mortgage Loans;
2) all payments on account of interest on the Mortgage Loans;
3) all Liquidation Proceeds;
4) all Insurance Proceeds, including amounts required to be deposited pursuant
to Sections 5.10 and 5.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged
Properties or released to the applicable Mortgagors in accordance with the
Servicer's normal servicing procedures, the related Mortgages or applicable
law;
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5) all Condemnation Proceeds affecting any Mortgaged Property which are not
released to a Mortgagor in accordance with the Servicer's normal servicing
procedures, the related Mortgage or applicable law;
6) any Monthly Advances in accordance with Section 6.03;
7) any amounts required to be deposited by the Servicer pursuant to Section
5.11 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit to be made from the Servicer's own funds
without reimbursement therefor;
8) any amounts required to be deposited by the Servicer pursuant to Section
5.16(ii) in connection with any losses on Permitted Investments; and
9) any amounts required to be deposited in the Collection Account pursuant to
Sections 7.01 or 7.02 or otherwise pursuant to the terms hereof.
10) interest on the amount of any Payoff at the related Remittance Rate to the
end of the month in which prepayment of the related Mortgage Loan occurs.
The foregoing requirements for deposit in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 7.01, need not be deposited by the
Servicer in the Collection Account and shall be retained by the Servicer as
additional compensation.
Section 5.05 Permitted Withdrawals from the Collection Account.
The Servicer may, from time to time in accordance with the provisions
hereof, withdraw amounts from the Collection Account for the following purposes
(without duplication):
1) to reimburse itself for unreimbursed Monthly Advances and Servicing
Advances (other than with respect to REO Properties) that are approved by
the Purchaser as being non-recoverable in accordance with Section 6.04;
2) to make payments to the Purchaser in the amounts, at the times and in the
manner provided for in Section 6.01;
3) to reimburse itself for Monthly Advances, the Servicer's right to reimburse
itself pursuant to this Subsection 3 being limited to amounts received on
the related Mortgage Loan which represent late payments of principal and/or
interest with respect to which any such Monthly Advance was made;
4) to reimburse itself for unreimbursed Servicing Advances (other than with
respect to REO Properties) and for unreimbursed Monthly Advances, the
Servicer's right to reimburse itself pursuant to this Subsection 4 with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of such reimbursement,
the Servicer's right thereto shall be prior to the rights of the Purchaser,
except that, where a Seller or the Servicer is required to repurchase a
Mortgage Loan pursuant to Sections 2.04, 3.04 and/or 7.02, the Servicer's
right to such reimbursement shall be subsequent and subordinate to the
payment to the Purchaser of the applicable Repurchase Price and all other
amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
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5) to pay to itself, solely out of the interest portion of the Monthly Payment
actually received with respect to a Mortgage Loan during the period ending
on the most recent Determination Date, the Servicing Fee with respect to
such Mortgage Loan;
6) to pay to itself as additional servicing compensation (a) any interest
earned on funds in the Collection Account (all such interest to be
withdrawn monthly not later than each Remittance Date) and (b) any
prepayment penalties or premiums relating to any Principal Prepayments;
provided that no such amounts shall be payable as servicing compensation to
the extent they relate to a Mortgage Loan with respect to which a default,
breach, violation, or event of acceleration exists or would exist but for
the lapse of time, the giving of notice, or both;
7) to pay to itself with respect to each Mortgage Loan that has been
repurchased pursuant to Sections 2.04, 3.04 and/or 7.02 all amounts
received thereon and not distributed as of the date on which the related
Repurchase Price is determined (except to the extent that such amounts
constitute part of the Repurchase Price to be remitted to the Purchaser);
8) to remove any amounts deposited into the Collection Account in error; and
9) to clear and terminate the Collection Account upon the termination of this
Agreement, with any funds contained therein to be distributed in accordance
with the terms of this Agreement.
10) The Servicer shall keep and maintain a separate, detailed accounting, on a
Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to this Section.
Section 5.06 Establishment of Escrow Accounts; Deposits in Escrow.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. The creation of any Escrow Account shall be evidenced by a
certification in the form shown on Exhibit 5.06-1 attached hereto, in the case
of an account established with the Servicer, or a letter agreement in the form
shown on Exhibit 5.06-2 attached hereto, in the case of an account held by a
depository other than the Servicer, such depository having been consented to by
the Purchaser. In either case, a copy of such certification or letter agreement
shall be furnished to the Purchaser.
The Servicer shall deposit in each Escrow Account on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the related
Mortgage Loans for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement, and (ii) all Insurance Proceeds
which are to be applied to the restoration or repair of any Mortgaged Property.
The Servicer shall make withdrawals therefrom only to effect such payments as
are required under Sections 5.07 and/or 5.08. The Servicer shall be entitled to
retain any interest paid on funds deposited in the Escrow Account by the
depository institution other than interest on escrowed funds required by law to
be paid to the Mortgagor and, to the extent required by law, the Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes, without any right of reimbursement therefor. The Servicer
shall be responsible for ensuring that the administrator of the Escrow Account
complies with all applicable laws, and shall indemnify and hold the Purchaser
harmless with respect to the administration of such Accounts.
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Section 5.07 Permitted Withdrawals From Escrow Accounts.
Withdrawals from any Escrow Account may be made by the Servicer only (i) to
effect timely payments of ground rents, taxes, assessments, water rates, hazard
insurance premiums, Primary Insurance Policy premiums, if applicable, and
comparable items constituting Escrow Payments for the related Mortgage, (ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan that 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) if permitted by applicable law, for transfer to the Collection
Account in accordance with the terms of this Agreement, (v) for application to
restoration or repair of the Mortgaged Property in accordance with the terms of
the related Mortgage Loan, (vi) to pay to the Servicer, or to the Mortgagor to
the extent required by law, any interest paid on the funds deposited in the
Escrow Account, (vii) to reimburse a Mortgagor in connection with the making of
the Payoff of the related Mortgage Loan or the termination of all or part of the
escrow requirement in connection with the Mortgage Loan, (viii) to remove any
amounts deposited into the Escrow Account in error; or (ix) to clear and
terminate the Escrow Account on the termination of this Agreement.
Section 5.08 Payment of Taxes, Insurance and Other Charges; Maintenance of
Primary Insurance Policies; Collections Thereunder.
With respect to each Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates
and other charges which are or may become a lien upon the Mortgaged Property and
the status of Primary Insurance Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of such
charges, including renewal premiums, and shall effect payment thereof prior to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Servicer in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage and applicable law. If a Mortgage does not provide for
Escrow Payments, then the Servicer shall require that any such payments be made
by the Mortgagor at the time they first become due. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments and shall make
advances from its own funds to effect such payments but shall be entitled to
reimbursement thereof in accordance with the terms of this Agreement.
The Servicer shall maintain in full force and effect a Primary Insurance
Policy, conforming in all respects to the description set forth in Section
3.03(29), issued by an insurer described in that Section, with respect to each
Mortgage Loan for which such coverage is required. Such coverage will be
maintained until the Loan-to-Value Ratio of the related Mortgage Loan is reduced
to 75% or less in the case of a Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80% or until such time, if any, as such insurance is
required to be released in accordance with the provisions of applicable law
including, but not limited to, the Homeowners Protection Act of 1998. The
Servicer shall assure that all premiums due under any Primary Insurance Policy
are paid in a timely manner, but, shall be entitled to reimbursement pursuant to
the terms of this Agreement for premiums paid by the Servicer on behalf of any
Mortgagor who is obligated to pay such premiums but fails to do so. The Servicer
shall not cancel or refuse to renew any Primary Insurance Policy in effect on
the Closing Date that is required to be kept in force under this Agreement
unless a replacement Primary Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with an insurer that satisfies the
standards set forth in Section 3.03. The Servicer shall not take any action
which would result in noncoverage under any applicable Primary Insurance Policy
of any loss which, but for the actions of
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the Servicer, would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 7.01, the Servicer shall promptly notify the insurer under the
related Primary 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 Insurance Policy. If such Primary Insurance Policy is
terminated as a result of such assumption or substitution of liability, then the
Servicer shall obtain, and, except as otherwise provided above, maintain, a
replacement Primary Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Insurance Policy in a timely fashion in accordance
with the terms of such policies and, in this regard, to take such action as
shall be necessary to permit recovery under any Primary Insurance Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 5.04, any amounts
collected by the Servicer under any Primary Insurance Policy shall be deposited
in the Collection Account, subject to withdrawal in accordance with Section
5.05.
Section 5.09 Transfer of Accounts.
The Servicer may transfer the Collection Account or any Escrow Account to a
different depository institution from time to time; provided that (i) no such
transfer shall be made unless all certifications or letter agreements required
under Section 5.04 have been executed and delivered by the parties thereto; and
(ii) concurrently upon any such transfer, the Servicer shall give written notice
thereof to the Purchaser. Notwithstanding anything to the contrary contained
herein, the Collection Account and each Escrow Account shall at all times
constitute Eligible Accounts.
To the extent that at any time the funds in either the Collection Account
or the Escrow Account should exceed the FDIC maximum insurance limit, (the
"Excess Amount"), the Servicer shall put such Excess Amounts into Permitted
Investments, which funds shall be brought back into the Collection Account or
Escrow Account, as the case may be, for distribution to the Purchaser on the
related Remittance Date.
Section 5.10 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount that is at least equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan and (b) the greater of (1) the Unpaid Principal Balance of such Mortgage
Loan or (2) an amount such that the proceeds thereof shall be sufficient to
prevent the Mortgagor and/or the loss payee from becoming a co-insurer.
If any Mortgaged Property is in an area identified by the Federal Emergency
Management Agency as having special flood hazards and such flood insurance has
been made available, then the Servicer will cause to be maintained a flood
insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Program with a generally acceptable insurance carrier,
in an amount representing coverage not less than the lesser of (a) the
outstanding principal balance of the related Mortgage Loan or (b) the maximum
amount of insurance which is available under the Flood Disaster Protection Act
of 1973, as amended.
The Servicer shall also maintain on each REO Property fire, hazard and
liability insurance, and to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood
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insurance with extended coverage in an amount which is at least equal to the
lesser of (a) the maximum insurable value of the improvements which are a part
of such property and (b) the outstanding principal balance of the related
Mortgage Loan at the time it became an REO Property plus accrued interest at the
Note Rate and related Servicing Advances.
All such policies shall be endorsed with standard mortgagee clauses with
loss payable to the Servicer, or upon request to the Purchaser, and shall
provide for at least 30 days prior written notice of any cancellation, reduction
in the amount of, or material change in, coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor's freedom of choice in selecting either
his insurance carrier or agent, provided that the Servicer shall not accept any
such insurance policies from insurance companies unless such companies (a)
currently reflect (1) a general policyholder's rating of B+ or better and a
financial size category of III or better in Best's Key Rating Guide, or (2) a
general policyholder's rating of "A" or "A-" or better in Best's Key Rating
Guide, and (b) are licensed to do business in the state wherein the related
Mortgaged Property is located. Notwithstanding the foregoing, the Servicer may
accept a policy underwritten by Lloyd's of London or, if it is the only coverage
available, coverage under a state's Fair Access to Insurance Requirement (FAIR)
Plan. If a hazard policy becomes in danger of being terminated, or the insurer
ceases to have the ratings noted above, the Servicer shall notify the Purchaser
and the related Mortgagor, and shall use its best efforts, as permitted by
applicable law, to obtain from another qualified insurer a replacement hazard
insurance policy substantially and materially similar in all respects to the
original policy. In no event, however, shall a Mortgage Loan be without a hazard
insurance policy at any time, subject only to Section 5.11.
Pursuant to Section 5.04, any amounts collected by the Servicer under any
such policies other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or REO Property,
or released to the Mortgagor in accordance with the Servicer's normal servicing
procedures, shall be deposited in the Collection Account within one Business Day
after receipt, subject to withdrawal in accordance with Section 5.05. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating remittances to the Purchaser, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional
insurance need be required by the Servicer of the Mortgagor or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
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Section 5.11 Maintenance of Mortgage Impairment Insurance Policy .
If the Servicer obtains and maintains a blanket policy issued by an issuer
that has a Best's Key rating of A+:V 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 5.10 and otherwise
complies with all other requirements of Section 5.10, it shall conclusively be
deemed to have satisfied its obligations as set forth in Section 5.10, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a policy complying with Section 5.10 and
there shall have been one or more losses which would have been covered by such
policy, deposit in the Collection Account the amount not otherwise payable under
the blanket policy because of such deductible clause; provided that the Servicer
shall not be entitled to obtain reimbursement therefor. In connection with its
activities as servicer of the Mortgage Loans, the Servicer agrees to prepare and
present, on behalf of the Purchaser, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy. Upon request of the
Purchaser, the Servicer shall cause to be delivered to the Purchaser a certified
true copy of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Purchaser.
Section 5.12 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of FNMA and FHLMC on all
officers, employees or other Persons acting in any capacity with regard to the
Mortgage Loan to handle funds, money, documents and papers relating to the
Mortgage Loans. The Fidelity Bond and errors and omissions insurance shall be in
the form of the "Mortgage Banker's Blanket Bond" and shall protect and insure
the Servicer against losses, including losses arising by virtue of any Mortgage
Loan not being satisfied in accordance with the procedures set forth in Section
7.02 and/or losses resulting from or arising in connection with forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of or by such
Persons. Such Fidelity Bond shall also protect and insure the Servicer against
losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 5.12 requiring the Fidelity Bond
and errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by FNMA in the FNMA Guide and by FHLMC in the
FHLMC Servicing Guide. The Servicer shall cause to be delivered to the Purchaser
on or before the Closing Date: (i) a certified true copy of the Fidelity Bond
and insurance policy; (ii) a written statement from the surety and the insurer
that such Fidelity Bond or insurance policy shall in no event be terminated or
materially modified without 30 days prior written notice to the Purchaser; and
(iii) written evidence reasonably satisfactory to the Purchaser that such
Fidelity Bond or insurance policy provides that the Purchaser is a beneficiary
or loss payee thereunder.
Section 5.13 Management of REO Properties.
If title to any Mortgaged Property is acquired in foreclosure or by deed in
lieu of foreclosure (each, an "REO Property"), the deed or certificate of sale
shall be taken in the name of the Purchaser or the Person (which may be the
Servicer for the benefit of the Purchaser) designated by the Purchaser, or in
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the event the Purchaser or such Person is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or would
be adversely affected under the "doing business" or tax laws of such state by so
holding title, the deed or certificate of sale shall be taken in the name of
such Person or Persons as shall be consistent with an opinion of counsel
obtained by the Servicer from an attorney duly licensed to practice law in the
state where the REO Property is located. The Servicer (acting alone or through a
subservicer), on behalf of the Purchaser, shall, subject to Section
5.01(iii)(c), dispose of any REO Property pursuant to Section 5.14. Unless an
appraisal prepared by an MAI Appraiser who is Independent in accordance with the
provisions of 12 C.F.R. 225.65 shall have been obtained in connection with the
acquisition of such REO Property, promptly following any acquisition by the
Purchaser (through the Servicer) of an REO Property, the Servicer shall obtain a
narrative appraisal thereof (at the expense of the Purchaser) in order to
determine the fair market value of such REO Property. The Servicer shall
promptly notify the Purchaser of the results of such appraisal. The Servicer
shall also cause each REO Property to be inspected promptly upon the acquisition
of title thereto and shall cause each REO Property to be inspected at least
annually thereafter, and Servicer shall be entitled to be reimbursed for
expenses in connection therewith in accordance with this Agreement. The Servicer
shall make or cause to be made a written report of each such inspection. Such
reports shall be retained in the Servicer's Mortgage File and copies thereof
shall be forwarded by the Servicer to the Purchaser. The Servicer shall also
furnish to the Purchaser the applicable reports required under Section 8.01.
Notwithstanding anything to the contrary contained herein, if a REMIC election
has been or is to be made with respect to the arrangement under which the
Mortgage Loans and the REO Properties are held, then the Servicer shall manage,
conserve, protect and operate each REO Property in a manner that does not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 86OG(a)(8) of the Code or result in the receipt by such REMIC
of any "income from non-permitted assets" within the meaning of Section
86OF(a)(2)(B) or any "net income from foreclosure property" within the meaning
of Section 86OG(c)(2) of the Code (or comparable provisions of any successor or
similar legislation).
The Servicer shall deposit and hold all revenues and funds collected and
received in connection with the operation of each REO Property in the Collection
Account, and the Servicer shall account separately for revenues and funds
received or expended with respect to each REO Property.
The Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement (and, in particular, Section
5.01(iii)(c)), to do any and all things in connection with any REO Property as
are consistent with the servicing standards set forth in Section 5.01. In
connection therewith, the Servicer shall deposit or cause to be deposited on a
daily basis in the Collection Account all revenues and collections received or
collected by it with respect to each REO Property, including all proceeds of any
REO Disposition. Subject to Section 5.15(iv), the Servicer shall withdraw
(without duplication) from the Collection Account, but solely from the revenues
and collections received or collected by it with respect to a specific REO
Property, such funds necessary for the proper operation, management and
maintenance of such REO Property, including the following:
(1) all insurance premiums due and payable in respect of such REO Property;
(2) all real estate taxes and assessments in respect of such REO Property that
may result in the imposition of a lien thereon;
(3) all customary and reasonable costs and expenses necessary to maintain,
repair, appraise, evaluate, manage or operate such REO Property (including the
customary and reasonable costs incurred by any "managing agent" retained by the
Servicer in connection with the maintenance, management or operation of such REO
Property);
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(4) all reasonable costs and expenses of restoration improvements, deferred
maintenance and tenant improvements; and
(5) all other reasonable costs and expenses, including reasonable attorneys'
fees, that the Servicer may suffer or incur in connection with its performance
of its obligations under this Section (other than costs and expenses that the
Servicer is expressly obligated to bear pursuant to this Agreement).
To the extent that amounts on deposit in the Collection Account are insufficient
for the purposes set forth in clauses (a) through (e) above, the Servicer shall,
subject to Section 6.04, advance the amount of funds required to cover the
shortfall with respect thereto. The Servicer shall promptly notify the Purchaser
in writing of any failure by the Servicer to make a Servicing Advance of the
type specified in clauses (a) or (b) above (irrespective of whether such
Servicing Advance is claimed to be non-recoverable by the Servicer pursuant to
Section 6.04).
Following the consummation of an REO Disposition, the Servicer shall remit to
the Purchaser, in accordance with Section 6.01, any proceeds from such REO
Disposition in the Collection Account following the payment of all expenses and
Servicing Advances relating to the subject REO Property.
Section 5.14 Sale of Specially Serviced Mortgage Loans and REO Properties.
Subject to Section 5.01 (and, specifically, Section 5.01(iii)(c)) and Section
5.15, the Servicer shall offer to sell any REO Property no later than the time
determined by the Servicer to be sufficient to result in the sale of such REO
Property on or prior to the purchase date specified in Section 5.15(iii). In
accordance with the servicing standards set forth in Section 5.01, the Servicer
shall solicit bids and offers from Persons for the purchase of any Specially
Serviced Mortgage Loan or REO Property and, upon receipt thereof, promptly (but
in any event within 3 Business Days) present such bids and offers to the
Purchaser. The Servicer shall not accept any bid or offer for any Specially
Serviced Mortgage Loan or REO Property except in compliance with Section
5.01(iii)(c). The Purchaser may reject any bid or offer if the Purchaser
determines the rejection of such bid or offer would be in the best interests of
the Purchaser. If the Purchaser rejects any bid or offer, the Servicer shall, if
appropriate, seek an extension of the 2 year period referred to in Section 5.15.
Subject to Section 5.01 (and, specifically, Section 5.01(iii)(c)) and Section
5.15, the Servicer shall act on behalf of the Purchaser in negotiating and
taking any other action necessary or appropriate in connection with the sale of
any Specially Serviced Mortgage Loan or REO Property, including the collection
of all amounts payable in connection therewith. The terms of sale of any
Specially Serviced Mortgage Loan or REO Property shall be in the sole discretion
of the Purchaser. Any sale of a Specially Serviced Mortgage Loan or any REO
Disposition shall be without recourse to, or representation or warranty by, the
Purchaser or the Servicer, and, if consummated in accordance with the terms of
this Agreement, then the Servicer shall have no liability to the Purchaser with
respect to the purchase price therefor accepted by the Purchaser. The proceeds
of any sale after deduction of the expenses of such sale incurred in connection
therewith shall be promptly deposited in (a) if such sale is an REO Disposition,
in the Collection Account in accordance with Section 5.13 and (b) in any other
circumstance, the Collection Account in accordance with Section 5.04.
Section 5.15 Realization Upon Specially Serviced Mortgage Loans and REO
Properties.
Subject to Section 5.01(iii)(c), the Servicer shall foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Specially
Serviced Mortgage Loans as come into and continue in default and as to which (a)
in the reasonable judgment of the Servicer, no satisfactory arrangements can, in
accordance with prudent lending practices, be made for collection of delinquent
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payments pursuant to Section 5.01 and (b) such foreclosure or other conversion
is otherwise in accordance with Section 5.01. The Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration, repair, protection or maintenance of any property unless it shall
determine that such expenses will be recoverable to it as Servicing Advances
either through Liquidation Proceeds or through Insurance Proceeds (in accordance
with Section 5.05) or from any other source relating to the Specially Serviced
Mortgage Loan. The Servicer shall be required to advance funds for all other
costs and expenses incurred by it in any such foreclosure proceedings; provided
that it shall be entitled to reimbursement thereof from the proceeds of
liquidation of the related Mortgaged Property, as contemplated by Section 5.05.
Upon any Mortgaged Property becoming an REO Property, the Servicer shall
promptly notify the Purchaser thereof, specifying the date on which such
Mortgaged Property became an REO Property. Pursuant to its efforts to sell such
REO Property, the Servicer shall, either itself or through an agent selected by
it, protect and conserve such REO Property in accordance with the servicing
standards set forth in Section 5.01 and may, subject to Section 5.01(iii)(c) and
incident to its conservation and protection of the interests of the Purchaser,
rent the same, or any part thereof, for the period to the sale of such REO
Property.
Notwithstanding anything to the contrary contained herein, the Purchaser shall
not, and the Servicer shall not on the Purchaser's behalf, acquire any real
property (or personal property incident to such real property) except in
connection with a default or a default that is imminent on a Mortgage Loan. If
the Purchaser acquires any real property (or personal property incident to such
real property) in connection with such a default, then such property shall be
disposed of by the Servicer in accordance with this Section and Section 5.14 as
soon as possible but in no event later than 2 years after its acquisition by the
Servicer on behalf of the Purchaser, unless the Servicer obtains, at the expense
of the Purchaser, in a timely fashion an extension from the Internal Revenue
Service for an additional specified period.
Any recommendation of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any REO Property, net of reimbursement
to the Servicer for Servicing Advances and fees for work-out compensation in
accordance with the FHLMC Servicing Guide, incurred with respect to such REO
Property under Section 5.13, shall be applied to the payment of the costs and
expenses set forth in Section 5.13(iv), with any remaining amounts to be
promptly deposited in the Collection Account in accordance with Section 5.13.
If, in the exercise of its servicing obligations with respect to any Mortgaged
Property hereunder, the Servicer deems it is necessary or advisable to obtain an
Environmental Assessment, then the Servicer shall so obtain an Environmental
Assessment, it being understood that all reasonable costs and expenses incurred
by the Servicer in connection with any such Environmental Assessment (including
the cost thereof) shall be deemed to be Servicing Advances recoverable by the
Servicer pursuant to Section 5.13(iv). Such Environmental Assessment shall (a)
assess whether (1) such Mortgaged Property is in material violation of
applicable Environmental Laws or (2) after consultation with an environmental
expert, taking the actions necessary to comply with applicable Environmental
Laws is reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, and (b) identify whether (1) any
circumstances are present at such Mortgaged Property relating to the use,
management or disposal of any hazardous materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or (2) if such
circumstances exist, after consultation with an environmental expert, taking
such actions is reasonably likely to produce a greater recovery on a present
value basis than not
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taking such actions. (The conditions described in the immediately preceding
clauses (a) and (b) shall be referred to herein as "Environmental Conditions
Precedent to Foreclosure.") If any such Environmental Assessment so warrants,
the Servicer is hereby authorized to and shall perform such additional
environmental testing as it deems necessary and prudent to establish the
satisfaction of the foregoing Environmental Conditions Precedent to Foreclosure
or to proceed in accordance with Subsection (vi) or (vii), as the case may be,
below (such additional testing thereafter being included in the term
"Environmental Assessment").
If an Environmental Assessment deemed necessary or advisable by the Servicer in
accordance with Subsection 5 of this Section 5.15 establishes that any of the
Environmental Conditions Precedent to Foreclosure is not satisfied with respect
to any Mortgaged Property, but the Servicer in good faith reasonably believes
that it is in the best economic interest of the Purchaser to proceed against
such Mortgaged Property and, if title thereto is acquired, to take such
remedial, corrective or other action with respect to the unsatisfied condition
or conditions as may be prescribed by applicable law to satisfy such condition
or conditions, then the Servicer shall so notify the Purchaser. If, pursuant to
Section 5.01(iii)(c), the Purchaser has notified the Servicer in writing to
proceed against such Mortgaged Property, then the Servicer shall so proceed. The
cost of any remedial, corrective or other action contemplated by the preceding
sentence in respect of any of the Environmental Conditions Precedent to
Foreclosure that is not satisfied shall not be an expense of the Servicer and
the Servicer shall not be required to expend or risk its own funds or otherwise
incur any financial liability in connection with any such action.
If an Environmental Assessment deemed necessary or advisable by the Servicer in
accordance with Subsection 5 of this Section 5.15 establishes that any of the
Environmental Conditions Precedent to Foreclosure is not satisfied with respect
to any Mortgaged Property and, in accordance with Section 5.01(iii)(c), the
Purchaser elects or is deemed to have elected not to proceed against such
Mortgaged Property, then the Servicer shall, subject to Section 5.01(iii)(c),
take such action as it deems to be in the best economic interest of the
Purchaser (other than proceeding against the Mortgaged Property or directly or
indirectly becoming the owner or operator thereof) as determined in accordance
with the servicing standard set forth in Section 5.01 and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage.
Prior to the Servicer taking any action with respect to the use, management or
disposal of any hazardous materials on any Mortgaged Property, the Servicer
shall request the approval of the Purchaser in accordance with Section
5.01(iii)(c) and, if such action is approved by the Purchaser, (a) keep the
Purchaser apprised of the progress of such action; and (b) take such action in
compliance with all applicable Environmental Laws.
Section 5.16 Investment of Funds in the Collection Account.
The Servicer may direct any depository institution which holds a Collection
Account to invest the funds in the Collection Account in one or more Permitted
Investments bearing interest. All such Permitted Investments shall be held to
maturity, unless payable on demand. In the event amounts on deposit in the
Collection Account are at any time invested in a Permitted Investment payable on
demand, the Servicer shall:
(a) consistent with any notice required to be given thereunder, demand that
payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount
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equal to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(b) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or notice from the Purchaser that such
Permitted Investment would not constitute a Permitted Investment in respect
of funds thereafter on deposit in the Collection Account.
All income and gain realized from investment of funds deposited in the
Collection Account shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with Section 5.05. The Servicer shall deposit in
the Collection Account the amount of any loss incurred in respect of any
Permitted Investment immediately upon realization of such loss.
Except as otherwise expressly provided in this Agreement, if any default occurs
in the making of a payment due under any Permitted Investment, or if a default
occurs in any other performance required under any Permitted Investment, the
Purchaser may elect to take such action, or instruct the Servicer to take such
action, as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings, at the expense of
the Servicer.
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ARTICLE V: REPORTS; REMITTANCES; ADVANCES
Section 6.01 Remittances.
(1) On each Remittance Date, the Servicer shall remit to the Purchaser (a) all
amounts credited to the Collection Account as of the close of business on the
preceding Determination Date (including (1) the amount of any Payoff, together
with interest thereon at the related Remittance Rate to the end of the month in
which prepayment of the related Mortgage Loan occursand (2) all proceeds of any
REO Disposition net of amounts payable to the Servicer pursuant to Section
5.13), net of charges against or withdrawals from the Collection Account in
accordance with Section 5.05, which charges against or withdrawals from the
Collection Account the Servicer shall make solely on such Remittance Date, plus
(b) all Monthly Advances, if any, which the Servicer is obligated to remit
pursuant to Section 6.03; provided that the Servicer shall not be required to
remit, until the next following Remittance Date, any amounts attributable to
Monthly Payments collected but due on a Due Date or Dates subsequent to the
preceding Determination Date.
(2) All remittances made to the Purchaser on each Remittance Date will be made
to the Purchaser or Purchaser's designee by wire transfer of immediately
available funds accordingly to the instructions that will be provided by
Purchaser to the Servicer.
(3) With respect to any remittance received by the Purchaser after the Business
Day on which such payment was due, the Servicer shall pay to the Purchaser
interest on any such late payment at an annual rate equal to the rate of
interest as is publicly announced from time to time by Citibank, N.A., New York,
New York, as its prime lending 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 paid by the Servicer to the
Purchaser on the date such late payment is made and shall cover the period
commencing with the Business Day on which such payment was due and ending with
the Business Day on which such payment is made, both inclusive. Such interest
shall be remitted along with such late payment. Neither the payment by the
Servicer nor the acceptance by the Purchaser of any such interest shall be
deemed an extension of time for payment or a waiver by the Purchaser of any
Event of Default.
Section 6.02 Reporting.
On or before the 5th calendar day (or, if such day is not a Business Day,
on the immediately succeeding Business Day) of each month during the term
hereof, the Servicer shall deliver to the Purchaser monthly accounting reports
in the form of Exhibits 6.02(a) through 6.02(g) attached hereto with respect to
the most recently ended Monthly Period. Such monthly accounting reports shall
include information as to the aggregate Unpaid Principal Balance of all Mortgage
Loans, the scheduled amortization of all Mortgage Loans, any delinquencies and
the amount of any Principal Prepayments as of the most recently ended Record
Date. The Purchaser may assess penalty fees in accordance with FNMA guidelines
for late or incorrect reporting.
The Servicer shall provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time.
Section 6.03 Monthly Advances by the Servicer.
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(1) Not later than the close of business on the Business Day immediately
preceding each Remittance Date, the Servicer shall deposit in the Collection
Account an amount equal to all Monthly Payments not previously advanced by the
Servicer (with interest adjusted to the Remittance Rate) that were due on a
Mortgage Loan and delinquent at the close of business on the related
Determination Date. The Servicer may reduce the total amount to be deposited in
the Collection Account as required by the foregoing sentence by the amount of
funds in the Collection Account which represent Prepaid Monthly Payments.
(2) The Servicer's obligations to make Monthly Advances as to any Mortgage Loan
will continue through the last Monthly Payment due prior to the payment in full
of the Mortgage Loan, or through the Remittance Date prior to the Remittance
Date for the remittance of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds or Condemnation Proceeds) with respect
to the Mortgage Loan; provided that such obligation shall cease if the Servicer
furnishes to the Purchaser an Officers' Certificate evidencing the determination
by the Servicer in accordance with Section 6.04 that advances with respect to
such Mortgage Loan are non-recoverable.
Section 6.04 Non-recoverable Advances.
The determination by the Servicer that any Monthly Advance or Servicing
Advance, if made, would constitute a non-recoverable advance shall be evidenced
by an Officers' Certificate delivered to the Purchaser detailing the reasons for
such determination, with copies of a relevant appraisal by an MAI Appraiser who
is Independent and, if such reports are to be used to determine that any Monthly
Advance or Servicing Advance would be a non-recoverable advance, all engineers'
reports, environmental reports or other information relevant thereto that
support such determination. Such Officers' Certificate shall set forth the
Servicer's considerations in reaching its conclusion that such advance is
non-recoverable, and such conclusion shall be based upon, in addition to the
above-described appraisal and reports, income and expense statements, rent
rolls, occupancy, property inspections, servicer inquiries and other information
of similar nature that support the Servicer's conclusion that such advance is
non-recoverable. The Purchaser shall have a period of 45 days following the
later of (i) the receipt by the Purchaser of such Officers' Certificate and all
documentation supplied by the Servicer relating thereto and (ii) the receipt by
the Purchaser of such other related documentation or information as shall have
been reasonably requested by the Purchaser within 30 days following the delivery
of such Officers' Certificate, to approve, by the exercise by the Purchaser of
its reasonable credit judgment, the subject Monthly Advance or Servicing Advance
as a non-recoverable advance. Only if the Purchaser has so approved any Monthly
Advance or Servicing Advance as non-recoverable shall the Servicer be entitled
to reimbursement for such non-recoverable advance (solely to the extent made) as
provided in Section 5.05 or Section 5.13, as applicable. The Servicer shall also
deliver to the Purchaser from time to time upon request copies of any appraisals
and other reports or information of the type described in this Section 6.04 that
it possesses relative to any Mortgaged Property.
Section 6.05 Itemization of Servicing Advances.
The Servicer shall provide the Purchaser with an itemization of all Servicing
Advances incurred or made by the Servicer hereunder not less than quarterly and
at such other times as the Purchaser may from time to time reasonably request.
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ARTICLE VI: GENERAL SERVICING PROCEDURE
Section 7.01 Enforcement of Due-on-Sale Clauses, Assumption Agreements.
(1) The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause applicable thereto; provided that the Servicer shall not
exercise any such rights if prohibited by law from doing so or if the exercise
of such rights would impair or threaten to impair any recovery under the related
Primary Insurance Policy, if any.
(2) If the Servicer is prohibited from enforcing such "due-on-sale" clause, then
the Servicer 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. (For
purposes of this Section 7.01, 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.) If any Mortgage Loan
is to be assumed, then the Servicer shall inquire into the creditworthiness of
the proposed transferee and shall use the same underwriting criteria for
approving the credit of the proposed transferee that are used with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. Where an
assumption is allowed, the Servicer, with the prior written consent of the
primary mortgage insurer, if any, and subject to the conditions of Section
7.01(iii), shall, and is hereby authorized to, enter into a substitution of
liability agreement with the Person to whom the Mortgaged Property is proposed
to be conveyed pursuant to which the original mortgagor is released from
liability and such Person is substituted as mortgagor and becomes liable under
the related Mortgage Note. Any such substitution of liability agreement shall be
in lieu of an assumption agreement. In no event shall the Note Rate, the amount
of the Monthly Payment or the final maturity date be changed. The Servicer shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser the original of any
such substitution of liability or assumption agreement, which document shall be
added to the related Purchaser's Mortgage File and shall, for all purposes, be
considered a part of such Purchaser's Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Servicer for entering into an assumption or substitution of liability
agreement shall be retained by the Servicer as additional compensation for
servicing the Mortgage Loans.
(3) If the credit of the proposed transferee does not meet such underwriting
criteria, then the Servicer shall, to the extent permitted by the Mortgage or
the Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
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Section 7.02 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, the Servicer will
immediately notify the Purchaser by a certification of a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Collection Account pursuant to Section 5.04 have been or
will be so deposited and shall request delivery to it of the Purchaser's
Mortgage File held by the Purchaser or its designee. Upon receipt of such
certification and request, the Purchaser shall promptly release the related
mortgage documents to the Servicer and the Servicer shall promptly prepare and
process any satisfaction or release. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account.
If the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage, or should it
otherwise take such action which results in a reduction of the coverage under
the Primary Insurance Policy, if any, then the Servicer shall promptly give
written notice thereof to the Purchaser, and, within 10 Business Days following
written demand therefor from the Purchaser to the Servicer, the Servicer shall
repurchase the related Mortgage Loan by paying to the Purchaser the Repurchase
Price therefor by wire transfer of immediately available funds directly to the
Purchaser's Account.
From time to time and as appropriate for the servicing or foreclosure of
the Mortgage Loan, including for this purpose collection under any Primary
Insurance Policy, the Purchaser or Purchaser's designee shall, upon request of
the Servicer and delivery to the Purchaser of a servicing receipt signed by a
Servicing Officer, release the Purchaser's Mortgage File held by the Purchaser
to the Servicer. Such servicing receipt shall obligate the Servicer to return
the related Mortgage documents to the Purchaser when the need therefor by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Purchaser's Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
nonjudicially, and the Servicer has delivered to the Purchaser a certificate of
a Servicing Officer certifying as to the name and address of the Person to which
such Purchaser's Mortgage File or such document was delivered and the purpose or
purposes of such delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated and the Liquidation Proceeds were
deposited in the Collection Account, the servicing receipt shall be released by
the Purchaser to the Servicer.
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Section 7.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be entitled
to retain from interest payments actually collected on the Mortgage Loans the
amounts provided for as the Servicing Fee. The Servicing Fee in respect of a
Mortgage Loan for a particular month shall become payable only upon the receipt
by the Servicer from the Mortgagor of the full Monthly Payment in respect of
such Mortgage Loan. Additional servicing compensation in the form of assumption
fees, as provided in Section 7.01, late payment charges and other servicer
compensation for modifications, short sales, and other services not to exceed
those fees described in the FHLMC Servicing Guide shall be retained by the
Servicer to the extent not required to be deposited in the Collection Account.
The Servicer shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for herein.
Section 7.04 Annual Statement as to Compliance.
The Servicer will deliver to the Purchaser on or before March 31 of each
year, beginning with March 31, 2002, an Officers' Certificate stating that (i) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement has been made under such officers'
supervision, (ii) the Servicer has fully complied with the provisions of this
Agreement and (iii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof.
Section 7.05 Annual Independent Certified Public Accountants' Servicing Report.
On or before March 31 of each year beginning March 31, 2002, the Servicer
at its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Purchaser to the effect that such firm has examined certain
documents and records relating to the servicing of the mortgage loans generally
that include a sampling of the Mortgage Loans, the provisions of Article VI have
been complied with and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing has been conducted in compliance with this
Agreement, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in such
statement.
Section 7.06 Purchaser's Right to Examine Servicer Records.
The Purchaser shall have the right to examine and audit, during business
hours or at such other times as are reasonable under applicable circumstances,
upon five days advance notice any and all of (i) the credit and other loan files
relating to the Mortgage Loans or the Mortgagors, (ii) any and all books,
records, documentation or other information of the Servicer (whether held by the
Servicer or by another) relating to the servicing of the Mortgage Loans and
(iii) any and all books, records, documentation or other information of the
Servicer (whether held by the Servicer or by another) that are relevant to the
performance or observance by the Servicer of the terms, covenants or conditions
of this Agreement. The Servicer shall be obligated to make the foregoing
information available to the Purchaser at the site where such information is
stored; provided that the Purchaser shall be required to pay all reasonable
costs and expenses incurred by the Servicer in making such information
available.
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ARTICLE VIII REPORTS TO BE PREPARED BY THE SERVICER
Section 8.01 The Servicer's Reporting Requirements.
Electronic Format. If requested by the Purchaser or its designee, the Servicer
shall supply any and all information regarding the Mortgage Loans and the REO
Properties, including all reports required to be delivered pursuant to this
Section 5.03, Section 6.02 and Section 8.01, to the Purchaser in electronic
format reasonably acceptable to Purchaser.
REO Property Reports. On or before the 3rd Business Day preceding each
Determination Date, the Servicer shall deliver to the Purchaser a report, in
form acceptable to Purchaser, describing in reasonable detail the Servicer's
efforts in connection with the sale of each REO Property and setting forth all
operating income (including rental income) and operating expenses pertaining to
each REO Property for the previous month, together with rent rolls, operating
statements, and such other information as is referenced on such report
pertaining to the REO Property.
Additional Reports; Further Assurances. On or before the 3rd Business Day
preceding each Determination Date, the Servicer shall deliver to the Purchaser
(i) a report, acceptable to the Purchaser, describing in reasonable detail all
Mortgage Loans that are 90 days or more delinquent and the Servicer's activities
in connection with such delinquencies and (ii) a report (substantially in the
form of Exhibit 8.01 attached hereto) with respect to delinquent Mortgage Loans.
Utilizing resources reasonably available to the Servicer without incurring any
cost except the Servicer's overhead and employees' salaries, the Servicer shall
furnish to the Purchaser during the term of this Agreement such periodic,
special or other reports, information or documentation, whether or not provided
for herein, as shall be reasonably requested by the Purchaser with respect to
Mortgage Loans or REO Properties (provided the Purchaser shall have given the
Servicer reasonable notice and opportunity to prepare such reports, information
or documentation), including any reports, information or documentation
reasonably required to comply with any regulations of any governmental agency or
body having jurisdiction over the Purchaser, all such reports or information to
be as provided by and in accordance with such applicable instructions and
directions as the Purchaser may reasonably request. If any of such reports are
not customarily prepared by the Servicer or require that the Servicer program
data processing systems to create the reports, then the Purchaser shall pay to
the Servicer a fee mutually agreed to by the Purchaser and the Servicer taking
into account the Servicer's actual time and cost in preparing such reports. The
Servicer 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 purposes and to carry out the terms of this Agreement.
Section 8.02 Financial Statements.
The Servicer understands that, in connection with marketing the Mortgage Loans,
the Purchaser may make available to any prospective purchaser of the Mortgage
Loans the Servicer's audited financial statements for its fiscal year 1999 and
its audited financial statements for fiscal year 2000, together with any
additional statements provided pursuant to the next sentence. During the term
hereof, the Servicer will deliver to the Purchaser audited financial statements
for each of its fiscal years following the Closing Date and all other financial
statements prepared following the Closing Date to the extent any such statements
are available upon request to the public at large.
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The Servicer also agrees to make available upon reasonable notice and during
normal business hours to any prospective purchasers of the Mortgage Loans a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Servicer or the financial
statements of the Servicer which may affect, in any material respect, the
Servicer's ability to comply with its obligations under this Agreement, and to
permit any prospective purchasers upon reasonable notice and during normal
business hours to inspect the Servicer's servicing facilities for the purpose of
satisfying such prospective purchasers that the Servicer has the ability to
service the Mortgage Loans in accordance with this Agreement.
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ARTICLEIX: THE SELLERS
Section 9.01 Indemnification; Third Party Claims.
Each Seller shall indemnify and hold harmless the Purchaser, its directors,
officers, agents, employees, and assignees (each, an "Indemnified Party") from
and against any costs, damages, expenses (including reasonable attorneys' fees
and costs, irrespective of whether or not incurred in connection with the
defense of any actual or threatened action, proceeding, or claim), fines,
forfeitures, injuries, liabilities or losses ("Losses") suffered or sustained in
any way by any such Person, no matter how or when arising (including Losses
incurred or sustained in connection with any judgment, award, or settlement), in
connection with or relating to (i) a breach by such Seller of any of its
representations and warranties contained in Article III or (ii) a breach by such
Seller of any of its covenants and other obligations contained herein including
any failure to service the Mortgage Loans in compliance with the terms hereof.
The applicable Seller shall immediately (i) notify the Purchaser if a claim is
made by a third party with respect to this Agreement, any Mortgage Loan and/or
any REO Property (ii) assume the defense of any such claim and pay all expenses
in connection therewith, including attorneys' fees, and (iii) promptly pay,
discharge and satisfy any judgment, award, or decree that may be entered against
it or the Indemnified Party in respect of such claim. Nothing contained herein
shall prohibit the Indemnified Party, at its expense, from retaining its own
counsel to assist in any such proceedings or to observe such proceedings;
provided that neither Seller shall be obligated to pay or comply with any
settlement to which it has not consented. All amounts required to be paid or
reimbursed by a Seller hereunder shall be paid or reimbursed as and when
incurred by the Indemnified Party upon demand therefor by such Indemnified
Party.
Section 9.02 Merger or Consolidation of the Seller.
Each Seller will keep in full effect its existence, rights and franchises
as a corporation or a Delaware business trust, as applicable, under the laws of
the state of its organization and will obtain and preserve its qualification to
do business as a foreign entity 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 a Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation (including by
means of the sale of all or substantially all of such Seller's assets to such
Person) 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
that, unless otherwise consented to by the Purchaser, the successor or surviving
Person, in the case of a merger or consolidation, etc. of the Servicer, shall be
an institution qualified to service mortgage loans on behalf of FNMA and FHLMC
in accordance with the requirements of Section 3.02(1), shall not cause a rating
on any security backed by a Mortgage Loan to be downgraded and shall satisfy the
requirements of Section 12.01 with respect to the qualifications of a successor
to such Seller.
53
Section 9.03 Limitation on Liability of the Sellers and Others.
Neither the Sellers nor any of the officers, employees or agents of the
Sellers 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 pursuant to the express written instructions of the Purchaser, or
for errors in judgment made in good faith; provided that this provision shall
not protect the Sellers 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 reasons of willful misfeasance, bad faith,
negligence or any breach in the performance of the obligations and duties
hereunder. The Sellers and any officer, employee or agent of the Sellers may
rely in good faith on any document of any kind reasonably believed by the
Sellers or such Person to be genuine and prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
The Sellers shall not be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to their duties hereunder and which in
their opinion may involve them in any expense or liability; provided that the
Sellers may in their discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Sellers shall be entitled to be reimbursed therefor out of the
Collection Account. This indemnity shall survive the termination of this
Agreement.
Section 9.04 Servicer Not to Resign.
With respect to the retention by Cendant Mortgage of the servicing of the
Mortgage Loans and the REO Properties hereunder, Cendant Mortgage acknowledges
that the Purchaser has acted in reliance upon Cendant Mortgage's Independent
status, the adequacy of its servicing facilities, plan, personnel, records and
procedures, its integrity, reputation and financial standing and the continuance
thereof. Consequently, Cendant Mortgage shall not assign the servicing rights
retained by it hereunder to any third party nor resign from the obligations and
duties hereby imposed on it except (i) with the approval of the Purchaser, such
approval not to be unreasonably withheld, or (ii) 30 Business Days following any
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by Cendant Mortgage. Any
determination permitting the transfer of the servicing rights or the resignation
of Cendant Mortgage under Subsection (ii) hereof 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 reasonably acceptable to the Purchaser.
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ARTICLEX: DEFAULT
Section 10.01 Events of Default.
In case one or more of the following events shall occur and be continuing:
(1) any failure by the Servicer to remit to the Purchaser any payment required
to be made under the terms of this Agreement which continues unremedied for
a period of 3 Business Days unless such failure to remit is due to a cause
beyond the Servicer's control, including an act of God, act of civil,
military or governmental authority, fire, epidemic, flood, blizzard,
earthquake, riot, war, or sabotage, provided that the Servicer gives the
Purchaser notice of such cause promptly and uses commercially reasonable
efforts to correct such failure to remit and does so remit within 2
Business Days following the end of the duration of the cause of such
failure to remit; or
(2) any failure on the part of a Seller/Servicer duly to observe or perform in
any material respect any of the covenants or agreements on the part of such
Seller/Servicer set forth in this Agreement which continues unremedied for
a period of 45 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the applicable
Seller/Servicer by the Purchaser; provided that such 45-day period shall
not begin with respect to any failure to cure or repurchase in accordance
with Sections 2.04 and/or 3.04 until the expiration of the cure periods
provided for in Sections 2.04 and/or 3.04, as applicable;
(3) any filing of an Insolvency Proceeding by or on behalf of a
Seller/Servicer, any consent by or on behalf of a Seller/Servicer to the
filing of an Insolvency Proceeding against a Seller/Servicer, or any
admission by or on behalf of a Seller/Servicer of its inability to pay its
debts generally as the same become due;
(4) any filing of an Insolvency Proceeding against a Seller/Servicer that
remains undismissed or unstayed for a period of 60 days after the filing
thereof;
(5) any issuance of any attachment or execution against, or any appointment of
a conservator, receiver or liquidator with respect to, all or substantially
all of the assets of a Seller/Servicer;
(6) any failure or inability of Cendant Mortgage to be eligible to service
Mortgage Loans for FNMA or FHLMC;
(7) any sale, transfer, assignment, or other disposition by a Seller/Servicer
of all or substantially all of its property or assets to a Person who does
not meet the qualifications enumerated or incorporated by reference into
Section 9.02, any assignment by a Seller/Servicer of this Agreement or any
of a Seller's/Servicer's rights or obligations hereunder except in
accordance with Section 9.04, or any action taken or omitted to be taken by
a Seller/Servicer in contemplation or in furtherance of any of the
foregoing, without the consent of the Purchaser;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Purchaser, by notice in writing to the Sellers may, in
addition to whatever rights the Purchaser may have at law or in equity to
damages, including injunctive relief and specific performance, terminate all the
rights and obligations of the Sellers under this Agreement and in and to the
Mortgage Loans and the proceeds thereof subject to Section 12.01, without the
Purchaser's incurring any penalty or fee of any kind whatsoever in connection
therewith; provided that, upon the occurrence of an Event of Default under
Subsection (3), (4) or (5) of this Section 10.01, this Agreement and all
authority and power of the
55
Sellers hereunder (whether with respect to the Mortgage Loans, the REO
Properties or otherwise) shall automatically cease. On or after the receipt by
the Sellers of such written notice, all authority and power of the Sellers under
this Agreement (whether with respect to the Mortgage Loans or otherwise) shall
cease.
56
ARTICLEXI: TERMINATION
Section 11.01 Term and Termination.
(1) The servicing obligations of the Servicer under this Agreement may be
terminated as provided in Section 10.01 hereof.
(2) In any case other than as provided under Subsection (1) hereof, the
respective obligations and responsibilities of the Sellers hereunder shall
terminate upon: (a) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition of
all REO Property and the remittance of all funds due hereunder; or (b) the
mutual written consent of the Sellers and the Purchaser.
(3) Upon any termination of this Agreement or the servicing obligations of the
Servicer hereunder, then the Servicer shall prepare, execute and deliver all
agreements, documents and instruments, including all Servicer Mortgage Files,
and do or accomplish all other acts or things necessary or appropriate to effect
such termination, all at the Servicer's sole expense. In any such event, the
Servicer agrees to cooperate with the Purchaser in effecting the termination of
the Servicer's servicing responsibilities hereunder, including the transfer to
the Purchaser or its designee for administration by it of all cash amounts which
shall at the time be contained in, or credited by the Servicer to, the
Collection Account and/or the Escrow Account or thereafter received with respect
to any Mortgage Loan or REO Property.
Section 11.02 Termination without Cause
In the event that any Mortgage Loans become delinquent in their payment
obligations, and the Purchaser has no disposition option other than to sell such
non-performing Mortgage Loans to a third party purchaser on a servicing released
basis, then Seller agrees to act in the following manner: (i) either allow the
servicing function on such non-performing Mortgage Loans to be released to the
Purchaser's third party purchaser; or (ii) purchase the non-performing Mortgage
Loans from the Purchaser under the same price and terms which the Purchaser's
third party purchaser would have purchased such non-performing Mortgage Loans.
Section 11.03 Survival.
Notwithstanding anything to the contrary contained herein, the
representations and warranties of the parties contained herein and in any
certificate or other instrument delivered pursuant hereto, as well as the other
covenants hereof (including those set forth in Section 9.01) that, by their
terms, require performance after the termination by this Agreement, shall
survive the termination of this Agreement and shall inure to the benefit of the
parties, their successors and assigns. Sellers further agree that the
representations, warranties and covenants made by Sellers herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by Purchaser notwithstanding any investigation heretofore made by
Purchaser or on Purchaser's behalf.
57
ARTICLE VIIII: GENERAL PROVISIONS
Section 12.01 Successor to the Servicer.
Upon the termination of the Servicer's servicing responsibilities and duties
under this Agreement pursuant to Section 9.04, 10.01, or 11.01, the Purchaser
shall (i) succeed to and assume all of the Servicer's responsibilities, rights,
duties and obligations under this Agreement or (ii) appoint a successor servicer
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement prior to the termination of
the Servicer's responsibilities, duties and liabilities under this Agreement. If
the Servicer's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, then the Servicer
shall continue to discharge such duties and responsibilities during the period
from the date it acquires knowledge of such termination until the effective date
thereof (if applicable) all on the terms and conditions contained herein and
shall take no action whatsoever that might impair or prejudice the rights or
financial condition of its successor. The termination of the Servicer's
servicing responsibilities pursuant to any of the aforementioned Sections shall
not, among other things, relieve the Servicer of its obligations pursuant to
Section 2.04 and/or 7.02, the representations and warranties or other
obligations set forth in Sections 2.04, 3.01, 3.02 and 3.03 and the remedies
available to the Purchaser under the various provisions of this Agreement. In
addition, such termination shall not affect any claims that the Purchaser may
have against the Servicer arising prior to any such termination.
Section 12.02 Governing Law.
This Agreement is to be governed by, and construed in accordance with the
internal laws of the State of New York without giving effect to principals of
conflicts of laws. The obligations, rights, and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 12.03 Notices.
Any notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered, sent by courier with delivery against signature therefor, mailed by
registered mail, postage prepaid, and return receipt requested or transmitted by
telex, telegraph or telecopier and confirmed by a similar writing mailed or sent
by courier as provided above, to (i) in the case of the Purchaser, Xxxxxx
Brothers Bank, FSB, 0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000
Attention: Manager, Contract Finance, or such other address as may hereafter be
furnished to the Seller in writing by the Purchaser, (ii) in the case of the
Cendant Mortgage, Cendant Mortgage Corporation, 0000 Xxxxxx Xxx, Xx. Xxxxxx, XX
00000, Attention: Xxxxx X. Xxxxxx, Vice President, Secondary Marketing, and
(iii) in the case of the Trust, c/o Cendant Mortgage Corporation, as
Administrator, 0000 Xxxxxx Xxx, Xx. Xxxxxx, XX 00000, Attention: Xxxxx X.
Xxxxxx, Vice President, Secondary Marketing ,or such other address as may
hereafter be furnished to the Purchaser in writing by the applicable Seller.
Section 12.04 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, the invalidity
of any such covenant, agreement, provision or term of this Agreement shall in no
way affect the validity or enforceability of the other provisions of this
Agreement.
58
Section 12.05 Schedules and Exhibits.
The schedules and exhibits that are attached to this Agreement are hereby
incorporated herein and made a part hereof by this reference.
Section 12.06 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(1) 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;
(2) any reference in this Agreement to this Agreement or any other agreement,
document, or instrument shall be a reference to this Agreement or any other such
agreement, document, or instrument as the same has been amended, modified, or
supplemented in accordance with the terms hereof and thereof (as applicable);
(3) accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles;
(4) 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, unless the context shall otherwise require;
(5) 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;
(6) a reference to a "day" shall be a reference to a calendar day;
(7) the words "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular provision; and
(8) the terms "include" and "including" shall mean without limitation by reason
of enumeration.
Section 12.07 Waivers and Amendments, Noncontractual Remedies; Preservation of
Remedies.
This Agreement may be amended, superseded, canceled, renewed or extended and the
terms hereof may be waived, only by a written instrument signed by authorized
representatives of the parties or, in the case of a waiver, by an authorized
representative of the party waiving compliance. No such written instrument shall
be effective unless it expressly recites that it is intended to amend,
supersede, cancel, renew or extend this Agreement or to waive compliance with
one or more of the terms hereof, as the case may be. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, or any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
59
Section 12.08 Captions.
All section titles or captions contained in this Agreement or in any schedule or
exhibit annexed hereto or referred to herein, and the table of contents to this
Agreement, are for convenience only, shall not be deemed a part of this
Agreement and shall not affect the meaning or interpretation of this Agreement.
Section 12.09 Counterparts; Effectiveness.
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. This
Agreement shall become effective as of the date first set forth herein upon the
due execution and delivery of this Agreement by each of the parties hereto.
Section 12.10 Entire Agreement; Amendment.
This Agreement (including the schedules and exhibits annexed hereto or referred
to herein), together with the Cendant Guide, contains the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes all prior agreements, written or oral, with respect thereto. No
amendment, modification or alteration of the terms or provisions of this
Agreement shall be binding unless the same shall be in writing and duly executed
by the authorized representatives of the parties hereto.
Section 12.11 Further Assurances.
Each party hereto shall take such additional action as may be reasonably
necessary to effectuate this Agreement and the transactions contemplated hereby.
The Sellers will promptly and duly execute and deliver to the Purchaser such
documents and assurances and take such further action as the Purchaser may from
time to time reasonably request in order to carry out more effectively the
intent and purpose of this Agreement and to establish and protect the rights and
remedies created or intended to be created in favor of the Purchaser.
60
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their names to be
signed hereto by their respective officers as of the date first written above.
XXXXXX BROTHERS BANK, FSB
By:
--------------------------------
Name:
Title:
CENDANT MORTGAGE CORPORATION
By:
--------------------------------
Name:
Title:
XXXXXX'X GATE RESIDENTIAL MORTGAGE
TRUST (FORMERLY KNOWN AS CENDANT
RESIDENTIAL MORTGAGE TRUST)
BY: CENDANT MORTGAGE CORPORATION, AS
ADMINISTRATOR
By:
--------------------------------
Name:
Title:
61
SCHEDULE B-1
On or prior to the Closing Date, the Seller shall deliver to the Purchaser,
or its designee, each of the following documents for each Mortgage Loan:
(i) The original Mortgage Note endorsed, "Pay to the order of ________________,
without recourse" and signed in the name of the Seller by an authorized officer.
In the event that the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by "[SELLER], successor by merger to [name of predecessor]";
and in the event that 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]";
(ii) Original recorded Mortgage, with evidence of recording information thereon
except for any Mortgage which has been forwarded to the appropriate recorder's
office for recordation and which has not been returned by such recording
officer, in which case the Seller shall deliver and release to Purchaser a
certified true copy of any such Mortgage so certified by the Seller with
evidence of such Mortgage's delivery to the appropriate recorder's office. In
addition, the Seller shall deliver and release to the Purchaser the original
recorded Mortgage within 90 days after the Closing Date;
(iii) Original Assignment of Mortgage, in blank, which assignment shall be in
form and substance acceptable for recording but not recorded. In the event that
the Mortgage Loan was acquired by the Seller in a merger, the assignment must be
by "[SELLER], successor by merger to [name of predecessor]"; and in the event
that 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]";
(iv) Original policy of title insurance, except for those Mortgage Loans
originated within 60 days before the Closing Date, for which Mortgage Loans the
Seller shall have delivered and released to the Purchaser the related binders.
In addition, the Seller shall deliver to the Purchaser the original policy of
title insurance within 90 days after the Closing Date. The policy must be
properly endorsed, any necessary notices of transfer must be forwarded and any
other action required to be taken must be taken in order to fully protect, under
the terms of the policy and applicable law, Purchaser's interest as first
mortgagee;
(v) Original of all assumption, extensions and modification agreements;
(vi) If required under Section 7, the original policy of primary mortgage
guaranty insurance, or where such insurance is provided by a master policy, a
certified true copy of the master policy and the original certificate of
insurance;
(vii) Original recorded intermediate assignments of the Mortgage, including
warehousing assignments, if any.
(viii) Copies of documents evidencing the Borrower's pledge of additional
collateral securing the Mortgage Loan, if applicable.
62
EXHIBITS
63
EXHIBIT 9.01
CUSTODIAL AGREEMENT
64
EXHIBIT 9.02
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of May 29, 2001 by and
between Xxxxxx Brothers Bank, FSB ("Assignor") and Cendant Mortgage Corporation
("Assignee").
In Accordance with the terms of the Custody Agreement dated as of September
1, 1999 (the "Custody Agreement") among the Owner, the Initial Servicer and U.S.
Bank Trust National Association as custodian (the "Custodian") and for an in
consideration of the mutual agreements herein contained and other valuable
consideration the receipt and adequacy of which hereby are acknowledged, the
parties hereto hereby agree as follows:
1. Capitalized terms used herein shall have the meanings assigned in the
Custody Agreement.
2. The Assignor hereby grants, transfers and assigns to Assignee, and
Assignee hereby assumes all of the rights, of Assignor, as Servicer,
in, to and under the Custody Agreement with respect to the Mortgage
Loans on the attached schedule.
3. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor has not received notice of, and has no knowledge of any
offsets, counterclaims or other defenses available to the Custodian
or the Owner with respect to the Custody Agreement; and
b. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Custody Agreement or
the Mortgage Loans, including without limitation the transfer of the
servicing obligations under the Custody Agreement. The Assignor has
no knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of rights or
obligations under, the Custody Agreement.
4. That Assignee warrants and represents to, and convenants with, the
Assignor and the Custodian that the Assignee agrees to be bound, as
Servicer, by all of the terms, covenants and conditions of the Custody
Agreement, and from and after the date hereof, and the Assignee hereby
assumes all obligations of Servicer under the Custody Agreement.
65
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be executed by their duly authorized officers as of the date set
forth below.
Dated: May 29, 2001
XXXXXX BROTHERS BANK, FSB CENDANT MORTGAGE CORPORATION
Assignor Assignee
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Its: Its:
-------------------------------- -------------------------------
Taxpayer Taxpayer
Identification No. Identification No.:
------------------ ----------------
66
EXHIBIT 10
ASSIGNMENT AND CONVEYANCE
-------------------------
On this 29th day of May 2001, Cendant Mortgage Corporation ("Cendant
Mortgage") and Xxxxxx'x Gate Residential Mortgage Trust (formerly known as
Cendant Residential Mortgage Trust) as the Sellers, under that certain Mortgage
Loan Flow Purchase, Sale & Servicing Agreement, dated as of May 29, 2001 (the
"Agreement") does hereby sell, transfer, assign, set over and convey to Xxxxxx
Brothers Bank, FSB, as Purchaser under the Agreement all rights, title and
interest of the Seller in and to the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto. Pursuant to Section 2 of the Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased
as set forth in the Agreement. The ownership of each Mortgage Note, Mortgage,
and the contents of each Mortgage File is vested in the Purchaser and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be delivered promptly by the Seller to the
Purchaser.
The Seller confirms to the Purchaser that the representations and
warranties set forth in Section 3.03 of the Agreement with respect to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Section 3.01 of the Agreement with respect to
the Seller are true and correct as of the date hereof.
The Purchaser does hereby contract with Cendant Mortgage (the "Servicer")
as Servicer under the Agreement, to carry out the servicing responsibilities
related to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto. The Servicer hereby accepts the servicing responsibilities transferred
hereby and on the date hereof assumes all servicing responsibilities related to
the Mortgage Loans identified on the attached Mortgage Loan Schedule hereto all
in accordance with the Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
CENDANT MORTGAGE CORPORATION (SELLER AND SERVICER)
By:
-------------------------------------
Name:
Title:
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST
(FORMERLY KNOWN AS CENDANT RESIDENTIAL MORTGAGE
TRUST) (SELLER)
BY: CENDANT MORTGAGE CORPORATION, AS ADMINISTRATOR
By:
-------------------------------------
Name:
Title:
XXXXXX BROTHERS BANK, FSB (PURCHASER)
By:
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
67
MORTGAGE LOAN SCHEDULE
EXHIBIT C
Mortgage Loan Schedule
(retained in a separate closing binder entitled
"SASCO 2001-17 Mortgage Loan Schedule"
at XxXxx Xxxxxx LLP)
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
_______________
[Date]
[Custodian]
[Address]
Attention: [ ]
In connection with the administration of the mortgages held by you as
Custodian under a certain Custodial Agreement dated as of November 1, 2001,
between Xxxxx Fargo Bank Minnesota, N.A.,, as Trustee, and you, as Custodian
(the "Custodial Agreement"), the undersigned Servicer hereby requests a
release of the Mortgage File held by you as Custodian with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
___ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
___ 2. Mortgage Loan being foreclosed.
___ 3. Mortgage Loan repurchased. (The Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust Agreement.)
___ 4. Other. (Describe.)
___ 5. California Mortgage Loan expected to be paid in full.
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased (in
which case the Mortgage File will be retained by us permanently) and except if
the Mortgage Loan is being foreclosed or is a California Mortgage Loan
specified in 5 above (in which case the Mortgage File will be returned when no
longer required by us for such purpose).
2
Capitalized terms used herein shall have the meanings ascribed to them in
the Custodial Agreement.
_____________________________________
CENDANT MORTGAGE CORPORATION
By: _________________________________
Name:
Title: Servicing Officer
3
