MORGAN STANLEY MORTGAGE CAPITAL INC. Purchaser WACHOVIA MORTGAGE CORPORATION Seller FIRST AMENDED AND RESTATED SELLER’S PURCHASE, WARRANTIES AND SERVICING AGREEMENT Dated as of June 1, 2006
Exhibit
99.13c
Execution
Version
Purchaser
WACHOVIA
MORTGAGE CORPORATION
Seller
FIRST
AMENDED AND RESTATED SELLER’S PURCHASE, WARRANTIES AND SERVICING
AGREEMENT
Dated
as
of June 1, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
I
DEFINITIONS
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1
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Section
1.01.
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Defined
Terms.
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1
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ARTICLE
II
SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE
LOAN
DOCUMENTS
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15
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Section
2.01.
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Agreement
to Purchase.
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15
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Section
2.02.
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Purchase
Price.
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15
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Section
2.03.
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Servicing
of Mortgage Loans.
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16
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Section
2.04.
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Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
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16
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Section
2.05.
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Books
and Records.
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17
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Section
2.06.
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Transfer
of Mortgage Loans.
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17
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Section
2.07.
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Delivery
of Mortgage Loan Documents.
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17
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Section
2.08.
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Quality
Control Procedures.
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18
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Section
2.09.
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Closing.
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18
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ARTICLE
III
REPRESENTATIONS AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW
OF
MORTGAGE LOANS
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19
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Section
3.01.
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Representations
and Warranties of the Seller.
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19
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Section
3.02.
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Representations
and Warranties as to Individual Mortgage Loans.
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22
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Section
3.03.
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Repurchase;
Substitution.
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35
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Section
3.04.
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Repurchase
of Mortgage Loans with First Payment Defaults.
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37
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Section
3.05.
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Purchase
Price Protection.
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37
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ARTICLE
IV
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
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38
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Section
4.01.
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The
Seller to Act as Servicer.
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38
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Section
4.02.
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Collection
of Mortgage Loan Payments.
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39
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Section
4.03.
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Realization
Upon Defaulted Mortgage Loans.
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40
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Section
4.04.
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Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
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41
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Section
4.05.
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Permitted
Withdrawals from the Custodial Account.
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42
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Section
4.06.
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Establishment
of Escrow Accounts; Deposits in Accounts.
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43
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Section
4.07.
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Permitted
Withdrawals from the Escrow Account.
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44
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i
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Section
4.08.
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Payment
of Taxes, Insurance and Charges; Maintenance of Primary Mortgage
Insurance; Collections Thereunder.
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45
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Section
4.09.
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Transfer
of Accounts.
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46
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Section
4.10.
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Maintenance
of Hazard Insurance.
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46
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Section
4.11.
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Maintenance
of Mortgage Impairment Insurance Policy.
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47
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Section
4.12.
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
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47
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Section
4.13.
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Title,
Management and Disposition of REO Property.
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48
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Section
4.14.
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Notification
of Maturity Date.
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49
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ARTICLE
V
PAYMENTS TO THE PURCHASER
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49
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Section
5.01.
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Distributions.
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49
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Section
5.02.
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Statements
to the Purchaser.
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50
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Section
5.03.
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Monthly
Advances by the Seller.
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51
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Section
5.04.
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Liquidation
Reports.
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51
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ARTICLE
VI
GENERAL SERVICING PROCEDURES
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51
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Section
6.01.
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Assumption
Agreements.
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51
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Section
6.02.
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Satisfaction
of Mortgages and Release of Mortgage Files.
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52
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Section
6.03.
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Servicing
Compensation.
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53
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Section
6.04.
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Annual
Statement as to Compliance.
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53
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Section
6.05.
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Annual
Independent Certified Public Accountants’ Servicing
Report.
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54
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Section
6.06.
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Purchaser’s
Right to Examine Seller Records.
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54
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Section
6.07.
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Seller
Shall Provide Information as Reasonably Required.
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55
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ARTICLE
VII
THE SELLER
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55
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Section
7.01.
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Indemnification;
Third Party Claims.
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55
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Section
7.02.
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Merger
or Consolidation of the Seller.
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56
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Section
7.03.
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Limitation
on Liability of the Seller and Others.
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56
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Section
7.04.
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Seller
Not to Resign.
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57
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Section
7.05.
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No
Transfer of Servicing.
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57
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ARTICLE
VIII
DEFAULT
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57
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Section
8.01.
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Events
of Default.
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57
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Section
8.02.
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Waiver
of Defaults.
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59
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ARTICLE
IX
TERMINATION
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59
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ii
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Section
9.01.
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Termination.
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59
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ARTICLE
X
RECONSTITUTION OF MORTGAGE LOANS
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60
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Section
10.01.
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Reconstitution
of Mortgage Loans.
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60
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ARTICLE
XI
MISCELLANEOUS PROVISIONS
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62
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Section
11.01.
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Successor
to the Seller.
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62
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Section
11.02.
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Amendment.
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63
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Section
11.03.
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Recordation
of Agreement.
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63
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Section
11.04.
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Governing
Law.
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64
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Section
11.05.
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Notices.
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64
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Section
11.06.
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Severability
of Provisions.
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65
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Section
11.07.
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Exhibits.
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65
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Section
11.08.
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General
Interpretive Principles.
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65
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Section
11.09.
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Reproduction
of Documents.
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66
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Section
11.10.
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Confidentiality
of Information.
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66
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Section
11.11.
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Recordation
of Assignments of Mortgage.
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67
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Section
11.12.
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Assignment
by Purchaser.
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67
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Section
11.13.
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No
Partnership.
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67
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Section
11.14.
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Execution;
Successors and Assigns.
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67
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Section
11.15.
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Entire
Agreement.
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68
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Section
11.16.
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No
Solicitation.
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68
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Section
11.17.
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Costs.
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68
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Section
11.18.
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Protection
of Mortgagor Personal Information.
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69
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| A-1 |
Contents
of Mortgage File
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| A-2 |
Contents
of Servicing File
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| B |
Form
of Custodial Account Letter
Agreement
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| C |
Form
of Escrow Account Letter Agreement
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| D |
Form
of Assignment, Assumption and Recognition
Agreement
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| E |
Form
of Assignment and Conveyance
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| F |
Request
for Release of Documents and Receipt
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| G |
Form
of S-50Y Report
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| H |
Form
of P-4DL Report
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| I |
Form
of Indemnification and Contribution
Agreement
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| J |
Form
of Annual Certification
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iii
This
is a
First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement, dated as of June 1, 2006 and is executed by and between Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser (the “Purchaser”),
and
Wachovia Mortgage Corporation, as seller and servicer (in such capacity, the
“Seller”).
WHEREAS,
the Purchaser and the Seller are parties to that certain Seller’s Purchase,
Warranties and Servicing Agreement, dated as of June 1, 2004 (the “Original
Purchase Agreement”), the Purchaser has heretofore agreed to purchase from the
Seller and the Seller has heretofore agreed to sell to the Purchaser certain
Mortgage Loans, servicing rights retained, from time to time, pursuant to the
terms of letter agreements by and between the Seller and the Purchaser (each,
a
“Purchase
Price and Terms Letter”);
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule,
which is annexed to the related Assignment and Conveyance. The Mortgage Loans
as
described herein shall be delivered in groups of whole loans (each, a
“Mortgage
Loan Package”)
on
various dates as provided herein (each, a “Closing
Date”);
ARTICLE
I
Section
1.01. Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, and which are in accordance with
Xxxxxx Mae servicing practices and procedures, for MBS pool mortgages, as
defined in the Xxxxxx Xxx Guides, including future updates.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan as to which the related Mortgage Note provides that the Mortgage
Interest Rate may be adjusted periodically.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on the Mortgage Loan is
adjusted in accordance with the terms of the Mortgage Note.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A
Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This
First Amended and Restated Seller’s Purchase, Warranties and Servicing Agreement
including all exhibits hereto, amendments hereof and supplements
hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by a Qualified Appraiser, and (ii)
the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan, provided,
however,
in the
case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by a Qualified Appraiser.
Assignment
and Conveyance:
As
defined in Section 2.03.
Assignment
of Mortgage:
An
individual assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form and in blank, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to give record
notice of the transfer of the Mortgage.
Balloon
Mortgage Loan:
Any
Mortgage Loan which by its original terms or any modifications thereof provides
for amortization beyond its scheduled maturity date.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a legal holiday in the States
of
New York or North Carolina, or (iii) a day on which banks in the States of
New
York or North Carolina are authorized or obligated by law or executive order
to
be closed.
Closing
Date:
The
date or dates set forth in the related Purchase Price and Terms Letter on which
the Purchaser from time to time shall purchase and the Seller from time to
time
shall sell to the Purchaser, the Mortgage Loans listed on the related Mortgage
Loan Schedule with respect to the related Mortgage Loan Package.
2
Code:
The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Combined
Loan-to-Value Ratio
or
CLTV:
As to
any Second Lien Loan, the ratio, expressed as a percentage, of the (a) sum
of
(i) the original outstanding principal balance of the Second Lien Loan and
(ii)
the outstanding principal balance of any mortgage loan or mortgage loans that
are senior or equal in priority to the Second Lien Loan and which are secured
by
the same Mortgaged Property as of the origination date at such Second Lien
Loan
to (b) the Appraised Value of the related Mortgaged Property as of the
origination of the Second Lien Loan.
Compensating
Interest:
For any
Remittance Date, the lesser of (i) the aggregate Servicing Fee payable to the
Seller for such Remittance Date and (ii) the aggregate Prepayment Interest
Shortfall for such Remittance Date.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, by exercise of the power of eminent
domain or condemnation, to the extent not required to be released to a Mortgagor
in accordance with the terms of the related Mortgage Loan
Documents.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan purchased pursuant to this Agreement as to which
the related Mortgage Note permits the Mortgagor to convert the Mortgage Interest
Rate on such Mortgage Loan to a fixed Mortgage Interest Rate.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Co-op
Stock:
With
respect to a Co-op Loan, the single outstanding class of stock, partnership
interest or other ownership instrument in the related residential cooperative
housing corporation.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of the Standard
& Poor’s Glossary.
Credit
Score:
The
credit score for each Mortgage Loan shall be the minimum of two credit bureau
scores obtained at origination or such other time by the Seller. If two credit
bureau scores are obtained, the Credit Score will be the lower score. If three
credit bureau scores are obtained, the Credit Score will be the middle of the
three. When there is more than one applicant, the lowest of the applicants’
Credit Scores will be used. There is only one (1) score for any loan regardless
of the number of borrowers and/or applicants.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled “Wachovia Mortgage Corporation, in trust for the
Purchaser, as owner of various whole loan series” and shall be established as an
Eligible Account, in the name of the Person that is the “Purchaser” with respect
to the related Mortgage Loans.
3
Cut-off
Date:
With
respect to each Mortgage Loan Package, the first Business Day of the month
of
the related Closing Date, or as otherwise set forth in the related Purchase
Price and Terms Letter.
Determination
Date:
With
respect to each Remittance Date, the 15th day (or if such 15th day is not
a
Business Day, the Business Day immediately preceding such 15th day) of the
month
in which such Remittance Date occurs.
Due
Date:
With
respect to any Mortgage Loan, the first day of each month, exclusive of any
days
of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date, in both cases, inclusive.
Eligible
Account:
An
account established and maintained: (a) within FDIC insured accounts (or
other
accounts with comparable insurance coverage acceptable to the Rating Agencies)
created, maintained and monitored by the Seller so that all funds deposited
therein are fully insured, (b) with the corporate trust department of a
financial institution assigned a long-term debt rating of not less than “A-1” by
Standard & Poor’s or “Prime-1” by Xxxxx’x Investors Services, Inc. and, if
ownership of the Mortgage Loans is evidenced by mortgaged backed securities,
the
equivalent ratings of the rating agencies, and held such that the rights
of the
Purchaser and the owner of the Mortgage Loans shall be fully protected against
the claims of any creditors of the Seller and of any creditors or depositors
of
the institution in which such account is maintained or (c) in a separate
non-trust account without FDIC or other insurance in an Eligible Institution.
In
the event that a Custodial Account is established pursuant to clause (b)
or (c)
of the preceding sentence, the Seller shall provide the Purchaser with written
notice on the Business Day following the date on which the applicable
institution fails to meet the applicable ratings requirements.
Eligible
Institution:
An
institution having (i) the highest short-term debt rating, and one of the
two
highest long-term debt ratings of the Rating Agency; or (ii) with respect
to any
Custodial Account, an unsecured long-term debt rating of at least one of
the two
highest unsecured long-term debt ratings of the Rating Agencies.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(a) direct
obligations of, and obligations fully guaranteed by the United States of
America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
(b) (i)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision
and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term deposit rating and/or the long-term
unsecured debt obligations or deposits of such depository institution or
trust
company at the time of such investment or contractual commitment providing
for
such investment are rated in one of the two highest rating categories by
each
Rating Agency and (ii) any other demand or time deposit or certificate of
deposit that is fully insured by the FDIC;
4
(c) repurchase
obligations with a term not to exceed thirty (30) days and with respect
to (i)
any security described in clause (a) above and entered into with a depository
institution or trust company (acting as principal) described in clause
(b)(ii)
above;
(d) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that
are
rated in one of the two highest rating categories by each Rating Agency
at the
time of such investment or contractual commitment providing for such investment;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investments therein will cause the then outstanding
principal
amount of securities issued by such corporation and held as Eligible Investments
to exceed 10% of the aggregate outstanding principal balances of all of
the
Mortgage Loans and Eligible Investments;
(e) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than one year after the date of issuance thereof) which are rated in one
of the
two highest rating categories by each Rating Agency at the time of such
investment;
(f) any
other
demand, money market or time deposit, obligation, security or investment
as may
be acceptable to each Rating Agency as evidenced in writing by each Rating
Agency; and
(g) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith
and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (a)) and other securities and
which
money market funds are rated in one of the two highest rating categories
by each
Rating Agency.
provided,
however,
that no
instrument or security shall be an Eligible Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
obligations underlying such instrument or if such security provides for
payment
of both principal and interest with a yield to maturity in excess of 120%
of the
yield to maturity at par or if such investment or security is purchased
at a
price greater than par.
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled “Wachovia Mortgage Corporation, in trust for the
Purchaser, as owner of various whole loan series and various Mortgagors” and
shall be established as an Eligible Account, in the name of the Person
that is
the “Purchaser” with respect to the related Mortgage Loans.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and
any other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
5
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 8.01.
Xxxxxx
Mae:
The
entity formerly known as the Federal National Mortgage Association, or
any
successor thereto.
Xxxxxx
Xxx Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Xxx Servicers’ Guide and all amendments
or additions thereto, including, but not limited to, future updates
thereof.
Xxxxxx
Mae Transfer:
As
defined in Section 10.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended
and in effect from time to time.
First
Lien Loan:
A
Mortgage Loan secured by a first lien Mortgage on the related Mortgaged
Property.
First
Remittance Date:
The
eighteenth (18th) day of the month following each respective Closing Date,
or if
such day is not a Business Day, the first Business Day immediately
thereafter.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement which bears a fixed
Mortgage
Interest Rate during the life of the loan.
Xxxxxxx
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation, or
any
successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxxx Mac Servicers’ Guide and all
amendments or additions thereto, including, but not limited to, any future
updates thereof.
Xxxxxxx
Mac Transfer:
As
defined in Section 10.01.
GAAP:
Generally accepted accounting principles, consistently applied.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note and the related Mortgage Loan Schedule
that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for
such
Mortgage Loan.
6
High
Cost Loan:
A
Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of
1994 (“HOEPA”),
(b)
classified as a “high cost home,” “threshold,” “covered,” “high risk home,”
“predatory” or similar loan under any other applicable state, federal or local
law (or a similarly classified loan using different terminology under a
law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees),
(c)
with an “annual percentage rate” or total “points and fees” payable by the
related Mortgagor (as each such term is calculated under HOEPA) that exceed
the
thresholds set forth by HOEPA and its implementing regulations, including
12
C.F.R. § 226.32(a)(1)(i) or (d) categorized as High Cost pursuant to Appendix E
of Standard & Poor’s Glossary. For avoidance of doubt, the parties agree
that this definition shall apply to any law regardless of whether such
law is
presently, or in the future becomes, the subject of judicial review or
litigation.
Home
Loan:
A
Mortgage Loan categorized as a Home Loan pursuant to Appendix E of the
Standard
& Poor’s Glossary.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the Mortgage Interest Rate thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan that only requires payments of interest for a period of time
specified in the related Mortgage Note.
Liquidation
Proceeds:
Amounts
received in connection with the partial or complete liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan,
trustee’s sale, foreclosure sale or otherwise, or in connection with the sale of
the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of
the Mortgage.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of
the
original outstanding principal amount of the Mortgage Loan to the Appraised
Value of the Mortgaged Property at origination.
Manufactured
Home Mortgage Loan:
A
single
family residential unit that is constructed in a factory in sections in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by the Department of Housing and Urban
Development (“HUD Code”), as amended in 2000, which preempts state and local
building codes. Each unit is identified by the presence of a HUD
Plate/Compliance Certificate label. The sections are then transported to
the
site and joined together and affixed to a pre-built permanent foundation
(which
satisfies the manufacturer’s requirements and all state, county, and local
building codes and regulations). The manufactured home is built on a
non-removable, permanent frame chassis that supports the complete unit
of walls,
floors, and roof. The underneath part of the home may have running gear
(wheels,
axles, and brakes) that enable it to be transported to the permanent site.
The
wheels and hitch are removed prior to anchoring the unit to the permanent
foundation. The manufactured home must be classified as real estate and
taxed
accordingly. The permanent foundation may be on land owned by the mortgager
or
may be on leased land.
7
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth
on the
related Mortgage Loan Schedule and in the related Mortgage Note and is
the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized
and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth
on the
related Mortgage Loan Schedule and in the related Mortgage Note and is
the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee
for the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Advance:
The
payment required to be made by the Seller with respect to any Remittance
Date
pursuant to Section 5.03.
Monthly
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan pursuant to the terms of
the
related Mortgage Note.
Mortgage:
With
respect to any Mortgage Loan that is not a Co-op Loan, the mortgage, deed
of
trust or other instrument securing a Mortgage Note which creates a first
or
second lien on an unsubordinated estate in fee simple in real property
securing
the Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien
upon a
leasehold estate of the Mortgagor. With respect to a Co-op Loan, the related
Security Agreement.
8
Mortgage
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified
in
Exhibit
A-1
and any
additional documents required to be added to the Mortgage File pursuant
to this
Agreement.
Mortgage
Interest Rate:
As to
each Mortgage Loan, the annual rate at which interest accrues on such Mortgage
Loan in accordance with the provisions of the related Mortgage
Note.
Mortgage
Interest Rate Cap:
With
respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage
Interest
Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on
the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
any escrow accounts related to the Mortgage Loan, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan, excluding replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents contained in a Mortgage File.
Mortgage
Loan Package:
As
defined in the Recitals to this Agreement.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the Mortgage Interest Rate less the related
Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth the following information with
respect
to each Mortgage Loan in the related Mortgage Loan Package: (1) the
Seller’s Mortgage Loan identifying number; (2) the
Mortgagor’s name; (3) the
street address of the Mortgaged Property including the city, state and
zip code;
(4)
a code
indicating whether the Mortgagor is self-employed; (5) a
code indicating whether the Mortgaged Property is owner-occupied;
(6) the
number of units and type of residential property constituting the Mortgaged
Property; (7) the
original months to maturity or the remaining months to maturity from the
related
Cut-off Date, in any case based on the original amortization schedule and,
if
different, the maturity expressed in the same manner but based on the actual
amortization schedule; (8) with
respect to each First Lien Loan, the LTV at origination, and with respect
to
each Second Lien Loan, the CLTV at origination; (9) the
Mortgage Interest Rate as of the related Cut-off Date; (10) the
date on which the Monthly Payment was due on the Mortgage Loan and, if
such date
is not consistent with the Due Date currently in effect, such Due Date;
(11) the
stated maturity date; (12)
the
first payment date; (13) the
amount of the Monthly Payment as of the related Cut-off Date; (14) the
last payment date on which a payment was actually applied to the outstanding
principal balance; (15) the
original principal amount of the Mortgage Loan; (16) the
principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and
collected
on or before the related Cut-off Date; (17) with
respect to each Adjustable Rate Mortgage Loan, the Adjustment Date;
(18) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(19) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate
Cap
under the terms of the Mortgage Note; (20) with respect to each Mortgage
Loan, a
code indicating the type of Index; (21) the type of Mortgage Loan (i.e.,
Fixed
or Adjustable Rate Mortgage Loan, First or Second Lien Loan); (20) a
code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (21) a
code indicating the documentation style (i.e., full, alternative or reduced);
(22) asset
verification (Y/N); (23) the
loan credit classification (as described in the Underwriting Standards);
(24) whether
such Mortgage Loan provides for a Prepayment Penalty and, if applicable,
the
Prepayment Penalty term; (25) the
Mortgage Interest Rate as of origination; (26) the
credit risk score (FICO score); (27) the
date of origination; (28) with
respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment
period; (29) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate
adjustment percentage; (30) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate
Cap as
of the first Adjustment Date; (31) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate Cap subsequent
to the first Adjustment Date; (32) the
Due Date for the first Monthly Payment; (33) the
original Monthly Payment due; (34) a
code indicating the Primary Mortgage Insurance Policy provider and percentage
of
coverage, if applicable; (35) Appraised
Value; (36) appraisal
type; (37)
appraisal date; (40) a code indicating whether the Mortgage Loans is a
“buydown”
loan; and (38) with
respect to the related Mortgagor, the debt-to-income ratio. With respect
to the
Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall set forth
the
following information, as of the related Cut-off Date: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of
the Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; (4) the weighted average maturity of the Mortgage Loans;
(5) the applicable Cut-off Date; and (6) the applicable Closing
Date.
9
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to any Mortgage Loan that is not a Co-op Loan, the underlying real
property securing repayment of the related Mortgage Note, consisting of
a fee
simple parcel of real estate or a leasehold estate, the term of which is
equal
to or longer than the term of such Mortgage Note. With respect to a Co-op
Loan,
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related
Co-op
Lease.
Mortgagor:
The
obligor on a Mortgage Note.
Mortgagor
Personal Information:
Any
information, including, but not limited to, all personal information about
a
Mortgagor that is disclosed to the Seller or the Purchaser by or on behalf
of
the Mortgagor.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President and by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Seller, and delivered to the Purchaser as required by this
Agreement.
10
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the Purchaser,
provided that any Opinion of Counsel relating to (a) qualification of the
Mortgage Loans in a REMIC or (b) compliance with the REMIC Provisions, must
be (unless otherwise stated in such Opinion of Counsel) an opinion of counsel
who (i) is in fact independent of the Seller and any servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Seller or any servicer or in an Affiliate of
either
and (iii) is not connected with the Seller or any servicer as an officer,
employee, director or person performing similar functions.
OTS:
Office
of Thrift Supervision or any successor thereto.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Mortgage Loan may increase
(without regard to the Maximum Mortgage Interest Rate) or decrease (without
regard to the Minimum Mortgage Interest Rate) on such Adjustment Date from
the
Mortgage Interest Rate in effect immediately prior to such Adjustment Date,
which may be a different amount with respect to the first Adjustment
Date.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Premium
Percentage:
With
respect to any Mortgage Loan, a percentage equal to the excess of the Purchase
Price Percentage over 100%.
Prepayment
Interest Shortfall:
As to
any Remittance Date and Principal Prepayment in full, the difference between
(i)
one full month’s interest at the applicable Mortgage Interest Rate (after giving
effect to any applicable relief act reduction, debt service reduction and
deficient valuation), as reduced by the Servicing Fee Rate, on the outstanding
principal balance of the related Mortgage Loan immediately prior to such
Principal Prepayment and (ii) the amount of interest actually received
with
respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Penalty:
With
respect to each Mortgage Loan, the amount of any premium or penalty required
to
be paid by the Mortgagor if the Mortgagor prepays such Mortgage Loan as
provided
in the related Mortgage Note or Mortgage.
Primary
Mortgage Insurance Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant
to
Section 3.02(bb), or any replacement policy therefor obtained by the Seller
pursuant to Section 4.08.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as
the
average rate in The
Wall Street Journal
(Northeast Edition).
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan
which
is received in advance of its scheduled Due Date, including any Prepayment
Penalty thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months
subsequent to the month of prepayment.
11
Purchase
Price:
As
defined in Section 2.02.
Purchase
Price and Terms Letter:
As
defined in the Recitals to this Agreement which may also be a form of trade
execution notice.
Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc., its successors in interest and
assigns.
Qualified
Appraiser:
With
respect to each Mortgage Loan, an appraiser, duly appointed by the Seller,
who
had no interest, direct or indirect in the Mortgaged Property or in any
loan
made on the security thereof, and whose compensation is not affected by
the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Xxxxxx
Mae and
Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect
on the date the Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, approved as an insurer by
Xxxxxx
Xxx or Xxxxxxx Mac.
Rating
Agencies:
Standard & Poor’s Ratings Services, a division of The XxXxxx- Xxxx
Companies, Inc., Xxxxx’x Investors Service, Inc. or, in the event that some or
all ownership of the Mortgage Loans is evidenced by mortgage-backed securities,
the nationally recognized rating agencies issuing ratings with respect
to such
securities, if any.
Reconstitution:
As
defined in Section 10.01.
Reconstitution
Agreement:
As
defined in Section 10.01.
Reconstitution
Date:
As
defined in Section 10.01.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which
were
used in whole or part to satisfy an existing mortgage.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
The
18th day of each month, beginning with the First Remittance Date, or if
such day
is not a Business Day, the first Business Day thereafter.
REO
Disposition:
The
final sale by the Seller of any REO Property.
12
REO
Disposition Proceeds:
Amounts
received by the Seller in connection with an REO Disposition.
REO
Property:
A
Mortgaged Property acquired by or on behalf of the Purchaser in full or
partial
satisfaction of the related Mortgage as described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan for which a breach of a representation or
warranty
set forth in this Agreement is found, a price equal to (i) the then outstanding
principal balance of the Mortgage Loan to be repurchased, plus
(ii)
accrued interest thereon at the Mortgage Interest Rate from the date to
which
interest had last been paid through the date of such repurchase, plus
(iii)
the amount of any outstanding advances owed to any servicer, plus
(iv) all
costs and expenses incurred by the Purchaser or any servicer arising out
of or
based upon such breach, including without limitation reasonable costs and
expenses incurred in the enforcement of the Seller's repurchase obligation
hereunder, less
(v) in
the event the Seller is servicing such Mortgage Loan as of the date of
repurchase, amounts received or advanced in respect of such repurchased
Mortgage
Loan which are being held in the Custodial Account for distribution in
connection with such Mortgage Loan, plus
(vi) in
the event a Mortgage Loan is repurchased during the period following the
related
Closing Date and prior to a related Reconstitution Date (but in no event
shall
such period extend for more than the first twelve months following the
related
Closing Date), an amount equal to the Premium Percentage multiplied by
the
outstanding principal balance of such Mortgage Loan as of the date of such
repurchase.
RESPA:
Real
Estate Settlement Procedures Act, as amended from time to time.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Second
Lien Loan:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
Securitization
Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a trust or other
entity
as part of a publicly-offered or privately-placed, rated or unrated mortgage
pass-through or other mortgage-backed securities transaction.
Security
Agreement:
With
respect to a Co-op Loan, the agreement or mortgage creating a security
interest
in favor of the originator of the Co-op Loan in the related Co-op
Stock.
Scheduled
Principal Balance:
As to
each Mortgage Loan and any date of determination, (i) the principal balance
of
such Mortgage Loan as of the related Cut-off Date after giving effect to
payments of principal due on or before such date, whether or not received,
minus
(ii) all amounts previously distributed to the Purchaser with respect to
the
Mortgage Loan representing payments or recoveries of principal (or advances
in
lieu thereof).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its servicing obligations, including, but
not
limited to, the cost of (a) the preservation, restoration and protection
of a
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Seller specifies
the
Mortgage Loan(s) to which such expenses relate, and provided further that
any
such enforcement, administrative or judicial proceeding does not arise
out of a
breach of any representation, warranty or covenant of the Seller hereunder),
(c)
the management and liquidation of any REO Property, (d) taxes, assessments,
water rates, sewer rates and other charges which are or may become a lien
upon
the Mortgaged Property, and Primary Mortgage Insurance Policy premiums
and fire
and hazard insurance coverage, (e) any expenses reasonably sustained by
the
Seller with respect to the liquidation of the Mortgaged Property in accordance
with the terms of this Agreement and (f) compliance with the obligations
under
Section 4.08.
13
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser
shall
pay to the Seller, which shall, for each month, be equal to one-twelfth
of the
product of (i) the Servicing Fee Rate and (ii) the Scheduled Principal
Balance of such Mortgage Loan. Such fee shall be payable monthly, computed
on
the basis of the same principal amount and period respecting which any
related
interest payment on a Mortgage Loan is computed, and for any month in which
servicing of such Mortgage Loan is transferred from the Seller, shall be
pro
rated (based upon the number of days of the related month the Seller so
acted as
servicer relative to the number of days in that month) for each part thereof.
The obligation of the Purchaser to pay the Servicing Fee is limited to,
and
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds and other proceeds, to the extent permitted
by Section 4.05)
of
related Monthly Payments collected by the Seller, or as otherwise provided
under
Section 4.05.
Servicing
Fee Rate:
The per
annum rate at which the Servicing Fee accrues, which rate with respect
to each
Mortgage Loan shall be as set forth in the related Purchase Price and Terms
Letter.
Servicing
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified
in
Exhibit
A-2
and
copies of all documents for such Mortgage Loan specified in Exhibit
A-1.
Servicing
Officer:
Any
officer of the Seller involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Seller to the Purchaser upon request, as such
list may
from time to time be amended.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies Inc., and its successors in interest.
Standard
& Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
14
Underwriting
Standards:
As to
each Mortgage Loan, the Seller’s underwriting guidelines in effect as of the
date of origination of such Mortgage Loan.
Whole
Loan Transfer:
As
defined in Section 11.01(a)(i).
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE FILES; BOOKS
AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
Section
2.01. Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase on each Closing
Date,
pursuant to this Agreement and the related Purchase Price and Terms Letter,
the
Mortgage Loans being sold by the Seller and listed on the related Mortgage
Loan
Schedule, servicing rights retained, having an aggregate Scheduled Principal
Balance in an amount as set forth in the related Purchase Price and Terms
Letter, or in such other amount as agreed by the Purchaser and the Seller
as
evidenced by the actual aggregate principal balance of the Mortgage Loans
accepted by the Purchaser on such Closing Date. The Seller shall deliver
in an
electronic format the Mortgage Loan Schedule for the Mortgage Loans to
be
purchased on such Closing Date to the Purchaser at least two (2) Business
Days
prior to such Closing Date.
Section
2.02. Purchase
Price.
The
Purchase Price for the Mortgage Loans in a Mortgage Loan Package shall
be equal
to the sum of (a) the percentage of par as stated in the related Purchase
Price
and Terms Letter (subject to adjustment as provided therein), multiplied
by the
aggregate Scheduled Principal Balance of Mortgage Loans as of the related
Cut-off Date listed on the related Mortgage Loan Schedule plus
(b)
accrued interest on the aggregate Scheduled Principal Balance of the related
Mortgage Loans as of the related Cut-off Date at the weighted average Mortgage
Loan Remittance Rate of such Mortgage Loans from and including the related
Cut-off Date to but not including such Closing Date (the “Purchase
Price”).
If so
provided in the related Purchase Price and Terms Letter, portions of each
Mortgage Loan Package shall be priced separately.
The
Purchase Price as set forth in the preceding paragraph for the Mortgage
Loans in
a Mortgage Loan Package shall be paid on the related Closing Date by wire
transfer of immediately available funds.
With
respect to each Mortgage Loan, the Purchaser shall be entitled to (1) the
principal portion of all Monthly Payments due after the related Cut-off
Date,
(2) all other recoveries of principal collected on or after the related
Cut-off
Date (provided, however, that the principal portion of all Monthly Payments
due
on or before the related Cut-off Date and collected by the Seller or any
successor servicer after the related Cut-off Date shall belong to the Seller),
and (3) all payments of interest on the Mortgage Loans at the related Mortgage
Loan Remittance Rate (minus that portion of any such payment which is allocable
to the period prior to the related Cut-off Date). The Scheduled Principal
Balance of each Mortgage Loan as of the related Cut-off Date is determined
after
application of payments of principal due on or before the related Cut-off
Date
whether or not collected, together with any unscheduled Principal Prepayments
collected prior to the related Cut-off Date; provided,
however,
that
Monthly Payments for a Due Date beyond the related Cut-off Date shall not
be
applied to the principal balance as of the related Cut-off Date. Such Monthly
Payments shall be the property of the Purchaser. The Seller shall deposit
any
such Monthly Payments into the Custodial Account.
15
Section
2.03. Servicing
of Mortgage Loans.
On
each
Closing Date, the Mortgage Loans in the related Mortgage Loan Package will
be
sold by the Seller to the Purchaser on a servicing retained basis upon
the
execution and delivery of an Assignment and Conveyance in the form attached
hereto as Exhibit
E
(the
“Assignment
and Conveyance”).
Simultaneously
with the execution and delivery of the related Assignment and Conveyance,
for
each Mortgage Loan Package, the Seller hereby agrees to service the Mortgage
Loans listed on the Mortgage Loan Schedule in accordance with Accepted
Servicing
Practices and this Agreement. The rights of the Purchaser to receive payments
with respect to the related Mortgage Loans shall be as set forth in this
Agreement.
Section
2.04. Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
As
of
each Closing Date, the Seller will have sold, transferred, assigned, set
over
and conveyed to the Purchaser, without recourse, and the Seller hereby
acknowledges that the Purchaser will have, all the right, title and interest
of
the Seller in and to the Mortgage Loans. In accordance with Section 2.07,
the
Seller shall deliver at its own expense, the Mortgage Files for the related
Mortgage Loans to Purchaser or its designee. The possession of each Servicing
File by the Seller is for the sole purpose of servicing the related Mortgage
Loan. From each Closing Date, the ownership of each related Mortgage Loan,
including the Mortgage Note, the Mortgage, the contents of the related
Mortgage
File and all rights, benefits, proceeds and obligations arising therefrom
or in
connection therewith, has been vested in the Purchaser. All rights arising
out
of the Mortgage Loans including, but not limited to, all funds received
on or in
connection with the Mortgage Loans and all records or documents with respect
to
the Mortgage Loans prepared by or which come into the possession of the
Seller
shall be received and held by the Seller in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans. Any portion of the Mortgage
Files
retained by the Seller shall be appropriately identified in the Seller’s
computer system to clearly reflect the ownership of the Mortgage Loans
by the
Purchaser.
In
addition, in connection with the assignment of any MERS Mortgage Loan,
the
Seller agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser in accordance with this Agreement by including (or deleting,
in the
case of Mortgage Loans which are repurchased in accordance with this Agreement)
in such computer files the information required by the MERS® System to identify
the Purchaser of such Mortgage Loans. The Seller further agrees that it
will not
alter the information referenced in this paragraph with respect to any
Mortgage
Loan during the term of this Agreement unless and until such Mortgage Loan
is
repurchased in accordance with the terms of this Agreement.
16
Section
2.05. Books
and Records.
The
sale
of each Mortgage Loan will be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller and will be reflected
on
the Purchaser’s balance sheet and other financial statements as a purchase by
the Purchaser. The Seller shall maintain, a complete set of books and records
for the Mortgage Loans sold by it which shall be appropriately identified
in the
Seller’s computer system to clearly reflect the ownership of the Mortgage Loans
by the Purchaser. In particular, the Seller shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state
and
local laws, rules and regulations, and requirements of Xxxxxx Xxx or Xxxxxxx
Mac, as applicable, including but not limited to documentation as to the
method
used in determining the applicability of the provisions of the Flood Disaster
Protection Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium project
for
approval by Seller and periodic inspection reports as required by Section
4.13.
To the extent that original documents are not required for purposes of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller may be in the form of microfilm or microfiche or such other
reliable means of recreating original documents, including but not limited
to,
optical imagery techniques so long as the Seller complies with the requirements
of the Xxxxxx Mae Guides.
Section
2.06. Transfer
of Mortgage Loans.
The
Seller shall keep at its office books and records in which, subject to
such
reasonable regulations as it may prescribe, the Seller shall note transfers
of
Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer
is in compliance with the terms of Section 11.12. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this Agreement or any Mortgage Loan unless a properly executed
Assignment, Assumption and Recognition Agreement in the form of Exhibit
D
with
respect to such Mortgage Loan has been delivered to the Seller; provided,
that,
unless otherwise provided in the related Purchase Price and Terms Letter,
in no
event shall there be more than four (4) “Purchasers” with respect to any
Mortgage Loan Package. Upon receipt of notice of the transfer, the Seller
shall
xxxx its books and records to reflect the ownership of the Mortgage Loans
by
such assignee, and, except as otherwise provided herein, the previous Purchaser
shall be released from its obligations hereunder with respect to the Mortgage
Loans sold or transferred.
Section
2.07. Delivery
of Mortgage Loan Documents.
The
Seller shall, at least two (2) Business Days prior to the related Closing
Date
(or such later date as the Purchaser may reasonably request), deliver and
release to the Purchaser, or its designee, the Mortgage Loan Documents
with
respect to each Mortgage Loan pursuant to a bailee letter agreement. If
the
Seller cannot deliver the original recorded Mortgage Loan Documents on
the
related Closing Date, the Seller shall, promptly upon receipt thereof and
in any
case not later than 180 days from the related Closing Date, deliver such
original recorded documents to the Purchaser or its designee (unless the
Seller
is delayed in making such delivery by reason of the fact that such documents
shall not have been returned by the appropriate recording office). If delivery
is not completed within 180 days of the related Closing Date solely because
such
documents shall not have been returned by the appropriate recording office,
the
Seller shall deliver a recording receipt of such recording office or, if
such
recording receipt is not available, an officer’s certificate of a servicing
officer of the Seller, confirming that such document has been accepted
for
recording and shall use its best efforts to deliver such document within
twelve (12) months of the related Closing Date.
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To
the
extent received by it, the Seller shall forward to the Purchaser, or its
designee, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with
this Agreement within two (2) weeks after their execution; provided,
however,
that
the Seller shall provide the Purchaser, or its designee, with a copy, certified
by the Seller as a true copy, of any such document submitted for recordation
within two (2) weeks after its execution, and shall promptly provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within two (2) weeks of its return from the appropriate
public recording office.
The
Seller shall pay all initial recording fees, if any, for the Assignments
of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser
or the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall be
responsible for recording the Assignments of Mortgage and shall be reimbursed
by
the Seller for the costs associated therewith pursuant to the preceding
sentence.
Section
2.08. Quality
Control Procedures.
The
Seller shall have an internal quality control program that verifies, on
a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program
must be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is to ensure that the Mortgage Loans
are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or
other
authorized persons.
Section
2.09. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place
on the
related Closing Date. The closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree, or conducted in person, at such
place
as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
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(a)
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at
least two (2) Business Days prior to the related Closing Date,
the Seller
shall deliver to the Purchaser a magnetic diskette, or transmit
by modem
or e-mail, a listing on a loan-level basis of the information
contained in
the Mortgage Loan Schedule;
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18
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(b)
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all
of the representations and warranties of the Seller under this
Agreement
shall be true and correct as of the related Closing Date or,
with respect
to representations and warranties made as of a date other than
the related
Closing Date, as of such date, and no event shall have occurred
which,
with notice or the passage of time, would constitute a default
under this
Agreement;
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(c)
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the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents, in such forms as are
agreed
upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the terms
hereof;
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(d)
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the
Seller shall have received, or the Seller’s attorneys shall have received
in escrow, all closing documents, in such forms as are agreed
upon and
acceptable to the Seller, duly executed by all signatories other
than the
Seller as required pursuant to the terms
hereof;
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(e)
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the
Seller shall have delivered and released to the Purchaser (or its
designee) on or prior to the related Closing Date all documents
required
to be delivered and released pursuant to the terms of this Agreement;
and
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(f)
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all
other terms and conditions of this Agreement, the related Purchase
Price
and Terms Letter and the related Assignment and Conveyance shall
have been
materially complied with.
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Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
ARTICLE
III
Section
3.01. Representations
and Warranties of the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry out its business as now being conducted, and is licensed
and
qualified to transact business in and is in good standing under the laws
of each
state in which any Mortgaged Property is located or is otherwise exempt
under
applicable law from such licensing or qualification or is otherwise not
required
under applicable law to effect such licensing or qualification and no demand
for
such licensing or qualification has been made upon the Seller by any such
state,
and in any event the Seller is in compliance with the laws of any such
state to
the extent necessary to ensure the enforceability of each Mortgage Loan
and the
servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
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(b) The
Seller has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement, the related Purchase Price and Terms Letter and the related
Assignment and Conveyance and to conduct its business as presently conducted;
the Seller has duly authorized the execution, delivery and performance
of this
Agreement and any agreements contemplated hereby, has duly executed and
delivered this Agreement, the related Purchase Price and Terms Letter and
the
related Assignment and Conveyance, and any agreements contemplated hereby,
and
this Agreement, the related Purchase Price and Terms Letter, the related
Assignment and Conveyance and each Assignment of Mortgage to the Purchaser
and
any agreements contemplated hereby, constitute the legal, valid and binding
obligations of the Seller, enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors; and
all
requisite corporate action has been taken by the Seller to make this Agreement,
the related Purchase Price and Terms Letter, the related Assignment and
Conveyance and all agreements contemplated hereby valid and binding upon
the
Seller in accordance with their respective terms;
(c) None
of
the execution and delivery of this Agreement, the related Purchase Price
and
Terms Letter, the related Assignment and Conveyance, the sale of the Mortgage
Loans to the Purchaser, the consummation of the transactions contemplated
hereby, or the fulfillment of or compliance with the terms and conditions
of
this Agreement, the related Purchase Price and Terms Letter or the related
Assignment and Conveyance will conflict with any of the terms, conditions
or
provisions of the Seller’s charter or by-laws or materially conflict with or
result in a material breach of any of the terms, conditions or provisions
of any
legal restriction or any material agreement or instrument to which the
Seller is
now a party or by which it is bound, or constitute a default or result
in an
acceleration under any of the foregoing, or result in the material violation
of
any law, rule, regulation, order, judgment or decree to which the Seller
or its
property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage Loans,
the
execution, delivery, performance or enforceability of this Agreement, the
related Purchase Price and Terms Letter or the related Assignment and
Conveyance, or which is reasonably likely to have a material adverse effect
on
the financial condition of the Seller;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement, the related Purchase Price
and
Terms Letter and the related Assignment and Conveyance, except for consents,
approvals, authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement, the related
Purchase Price and Terms Letter and the related Assignment and Conveyance
are in
the ordinary course of business of the Seller, and the transfer, assignment
and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement, the related Purchase Price and Terms Letter and the related
Assignment and Conveyance are not subject to bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
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(g) The
Seller has not used selection procedures that identified the Mortgage Loans
as
being less desirable or valuable than other comparable mortgage loans in
the
Seller’s portfolio at the Cut-off Date;
(h) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a
sale for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(i) The
Seller is an approved seller/servicer of residential mortgage loans for
Xxxxxx
Xxx or Xxxxxxx Mac and HUD, with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. The Seller is
duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations, meets the minimum capital
requirements, if applicable, set forth by the OCC, and is in good standing
to
sell mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx
Mac
and no event has occurred which would make the Seller unable to comply
with
eligibility requirements or which would require notification to either
Xxxxxx
Mae or Xxxxxxx Mac;
(j) The
Seller does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement and
the
related Purchase Price and Terms Letter. The Seller is solvent and the
sale of
the Mortgage Loans will not cause the Seller to become insolvent. The sale
of
the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud
any of the Seller’s creditors;
(k) Neither
this Agreement nor any information, statement, tape, diskette, form, report,
or
other document furnished or to be furnished pursuant to this Agreement
or any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transfer or Whole Loan Transfer) contains
or will contain any untrue statement of fact or omits or will omit to state
a
fact necessary to make the statements contained herein or therein not
misleading;
(l) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing
Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to
this
Agreement;
(m) The
Seller has delivered to the Purchaser financial statements as to its last
two
complete fiscal years for which financial statements are available. All
such
financial statements fairly present the pertinent results of operations
and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries
and
have been prepared in accordance with GAAP consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has been
no
change in the business, operations, financial condition, properties or
assets of
the Seller since the date of the Seller’s financial statements that would have a
material adverse effect on its ability to perform its obligations under
this
Agreement, the related Purchase Price and Terms Letter or the related Assignment
and Conveyance;
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(n) The
Seller has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans; and
(o) The
Seller is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
(a) The
information set forth in the Mortgage Loan Schedule, including any diskette
or
other related data tapes delivered to the Purchaser, is complete, true
and
correct in all material respects as of the related Cut-off Date;
(b) With
respect to a first lien Mortgage Loan that is not a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in an estate
in fee
simple in real property securing the related Mortgage Note. With respect
to a
first lien Mortgage Loan that is a Co-op Loan, the Mortgage creates a first
lien
or a first priority ownership interest in the stock ownership and leasehold
rights associated with the cooperative unit securing the related Mortgage
Note;
(c) With
respect to a Second Lien Mortgage Loan that is not a Co-op Loan, the Mortgage
creates a second lien or a second priority ownership interest in an estate
in
fee simple in real property securing the related Mortgage Note. With respect
to
a Second Lien Mortgage Loan that is a Co-op Loan, the Mortgage creates
a second
lien or a second priority ownership interest in the stock ownership and
leasehold rights associated with the cooperative unit securing the related
Mortgage Note;
(d) All
payments due on or prior to the related Cut-off Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
thirty (30) days or more in payment and has not been dishonored; there
are no
material defaults under the terms of the Mortgage Loan; the Seller has
not
advanced funds, or induced, solicited or knowingly received any advance
of funds
from a party other than the owner of the Mortgaged Property subject to
the
Mortgage, directly or indirectly, for the payment of any amount required
by the
Mortgage Loan; as to each Mortgage Loan, there has been no more than one
thirty
(30) day delinquency during the immediately preceding twelve-month
period;
(e) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
22
(f) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law, or, necessary to
protect
the interest of the Purchaser. No instrument of waiver, alteration or
modification has been executed in connection with such Mortgage Loan, and
no
Mortgagor has been released, in whole or in part, from the terms thereof
except
in connection with an assumption agreement and which assumption agreement
is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule; the substance of any such waiver, alteration or modification
has
been approved by the issuer of any related Primary Mortgage Insurance Policy
and
title insurance policy, to the extent required by the related
policies;
(g) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(h) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by Xxxxxxx Mac, as well as all additional
requirements set forth in Section 4.10 of this Agreement. All such standard
hazard policies are in full force and effect and on the date of origination
contained a standard mortgagee clause naming the Seller and its successors
in
interest and assigns as loss payee and such clause is still in effect and
all
premiums due thereon have been paid. If required by the Flood Disaster
Protection Act of 1973, as amended, the Mortgage Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration which policy conforms to Xxxxxx Xxx and
Xxxxxxx
Mac requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable
under
Xxxxxx Mae or Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and upon the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at the Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor. Where required by state law
or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy
covering
the common facilities of a planned unit development. The hazard insurance
policy
is the valid and binding obligation of the insurer, is in full force and
effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement.
The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any
such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind
has
been or will be received, retained or realized by any attorney, firm or
other
person or entity, and no such unlawful items have been received, retained
or
realized by the Seller;
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(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, disclosure, predatory, fair
lending
or abusive lending laws applicable to the Mortgage Loan have been complied
with,
the consummation of the transactions contemplated hereby will not involve
the
violation of any such laws or regulations, and the Seller shall maintain
in its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such
requirements;
(j) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Seller has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(k) With
respect to any first lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected first lien on the Mortgaged Property
and,
with respect to any Second Lien Mortgage Loan, the related Mortgage is
a valid,
subsisting, enforceable and perfected second lien on the Mortgaged Property,
including for Mortgage Loans that are not Co-op Loans, all buildings on
the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems affixed to such buildings, and all
additions, alterations and replacements made at any time with respect to
the
foregoing securing the Mortgage Note’s original principal balance. The Mortgage
and the Mortgage Note do not contain any evidence of any security interest
or
other interest or right thereto. Such lien is free and clear of all adverse
claims, liens and encumbrances having priority over the first or second
lien, as
applicable, of the Mortgage subject only to (1) with respect to any Second
Lien
Mortgage Loan, the related First Lien, (2) the lien of non-delinquent current
real property taxes and assessments not yet due and payable, (3) covenants,
conditions and restrictions, rights of way, easements and other matters
of the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise
considered in the appraisal made for the originator of the Mortgage Loan,
or (B)
which do not adversely affect the appraised value of the Mortgaged Property
as
set forth in such appraisal, and (4) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use, enjoyment,
value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection
with the
Mortgage Loan establishes and creates (1) with respect to any first lien
Mortgage Loan, a valid, subsisting, enforceable and perfected first lien
and
first priority security interest and (2) with respect to any Second Lien
Mortgage Loan, a valid, subsisting, enforceable and perfected second lien
and
second priority security interest, in each case, on the property described
therein, and the Seller has the full right to sell and assign the same
to the
Purchaser;
(l) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms, except as such enforcement may be
limited
by bankruptcy, insolvency, moratorium, reorganization and other laws of
general
application affecting the rights of creditors generally and the equitable
remedy
of specific performance and by general equitable principles. All parties
to the
Mortgage Note and the related Mortgage had the legal capacity to enter
into the
Mortgage Loan and to execute and deliver the Mortgage Note and the related
Mortgage. The Mortgage Note and the related Mortgage have been duly and
properly
executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of Seller, the Mortgagor or any other party involved in the
origination of the Mortgage Loan. The proceeds of the Mortgage Loan have
been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have
been
complied with. All costs, fees and expenses incurred in making or closing
the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage
Note or
related Mortgage;
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(m) The
Seller or its Affiliate (or with respect to MERS Mortgage Loans, MERS on
behalf
of the Seller or its Affiliate) is the sole owner of record and holder
of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note, and
upon
recordation the Purchaser or its designee will be the owner of record of
the
Mortgage and the indebtedness evidenced by the Mortgage Note, and upon
the sale
of the Mortgage Loan to the Purchaser, the Seller will retain the Servicing
File
in trust for the Purchaser only for the purpose of servicing and supervising
the
servicing of the Mortgage Loan. Immediately prior to the transfer and assignment
to the Purchaser on the related Closing Date, the Mortgage Loan, including
the
Mortgage Note and the Mortgage, were not subject to an assignment or pledge,
and
the Seller had good and marketable title to and was the sole owner thereof
and
had full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the
Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the related Closing
Date,
the Seller will have no right to modify or alter the terms of the sale
of the
Mortgage Loan and the Seller will have no obligation or right to repurchase
the
Mortgage Loan or substitute another Mortgage Loan, except as provided in
this
Agreement;
(n) Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA lender’s title
insurance policy or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring (subject to the exceptions
contained
in (k)(1), (2), (3) and (4) above) the Seller, its successors and assigns,
as to
the first or second priority lien, as applicable, of the Mortgage in the
original principal amount of the Mortgage Loan. Where required by applicable
state law or regulation, the Mortgagor has been given the opportunity to
choose
the carrier of the required mortgage title insurance. The Seller, its successors
and assigns, are the sole insureds of such lender’s title insurance policy, such
title insurance policy has been duly and validly endorsed to the Purchaser
or
the assignment to the Purchaser of the Seller’s interest therein does not
require the consent of or notification to the insurer and such lender’s title
insurance policy is in full force and effect and will be in full force
and
effect upon the consummation of the transactions contemplated by this Agreement
and the related Purchase Price and Terms Letter. No claims have been made
under
such lender’s title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything
which
would impair the coverage of such lender’s title insurance policy, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained
or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
25
(o) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Seller nor, to the Seller’s knowledge, any prior mortgagee has
waived any default, breach, violation or event permitting acceleration.
With
respect to each Second Lien Mortgage Loan, (i) the First Lien is in full
force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such prior mortgage or the related mortgage note, (iii)
no event
which, with the passage of time or with notice and the expiration of any
grace
or cure period, would constitute a default, breach, violation or event
of
acceleration thereunder, and either (A) the prior mortgage contains a provision
which allows or (B) applicable law requires, the mortgagee under the Second
Lien
Mortgage Loan to receive notice of, and affords such mortgagee an opportunity
to
cure any default by payment in full or otherwise under the prior
mortgage;
(p) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise
to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to or equal to the lien of the related Mortgage, which are not insured
against by the title insurance policy referenced in paragraph (n)
above;
(q) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (n) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(r) The
Mortgage Loan was originated by or for the Seller. The Mortgage Loan complies
with the terms, conditions and requirements of the Underwriting Standards
in all
material respects. The Mortgage Notes and Mortgages (exclusive of any riders)
are on forms generally acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Mortgage
Loan bears interest at the Mortgage Interest Rate set forth in the related
Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note are
due and
payable on the first day of each month. The Mortgage contains the usual
and
enforceable provisions of the originator at the time of origination for
the
acceleration of the payment of the unpaid principal amount of the Mortgage
Loan
if the related Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder;
26
(s) The
Mortgaged Property at origination of the related Mortgage Loan was and,
to the
Seller’s knowledge, currently is free of material damage and waste. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property;
(t) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s
sale of, the Mortgaged Property pursuant to the proper procedures, the
holder of
the Mortgage Loan will be able to deliver good and merchantable title to
the
Mortgaged Property. There is no homestead or other exemption available
to the
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy
and
right of redemption;
(u) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses,
except as may be required by local law, are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection
with a
trustee’s sale or attempted sale after default by the Mortgagor;
(v) The
Mortgage File contains an appraisal (or other valuation method as indicated
on
the related Mortgage Loan Schedule and otherwise acceptable to Xxxxxx Mae
or
Xxxxxxx Mac for mortgage loans that have “DU” underwriter or loan prospector
approval, respectively) of the related Mortgaged Property signed prior
to the
final approval of the mortgage loan application by a Qualified Appraiser.
The
appraisal is in a form acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in clause
(k)
above and such collateral does not serve as security for any other
obligation;
(y) The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller or anyone on behalf of the Mortgagor, or paid by any source
other
than the Mortgagor nor does it contain any other similar provisions which
may
constitute a “buydown” provision. The Mortgage Loan is not a graduated payment
mortgage loan and the Mortgage Loan does not have a shared appreciation
or other
contingent interest feature;
27
(z) The
Mortgagor was not in bankruptcy or insolvent as of the date of origination
of
the Mortgage Loan and, to the Seller’s knowledge, is not in bankruptcy or
insolvent as of the related Closing Date;
(aa) Each
Fixed Rate Mortgage Loan has an original term to maturity of not more than
thirty (30) years, with interest calculated and payable in arrears on the
first
day of each month in equal monthly installments of principal and interest.
Except with respect to Interest Only Mortgage Loans, each Mortgage Note
requires
a monthly payment which is sufficient to fully amortize the original principal
balance of the Mortgage Loan fully by the stated maturity date, over an
original
term of not more than thirty (30) years and to pay interest at the related
Mortgage Interest Rate; provided, however, in the case of an Interest Only
Mortgage Loan, after the interest-only period, payments will be sufficient
to
amortize with respect to the life of the Mortgage Loan. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
No
Mortgage Loan is a Balloon Mortgage Loan;
(bb) If
a
Mortgage Loan has an LTV greater than 80%, the portion of the principal
balance
of such Mortgage Loan in excess of the portion of the Appraisal Value of
the
Mortgaged Property required by Xxxxxx Mae, is and will be insured as to
payment
defaults by a Primary Mortgage Insurance Policy issued by a Qualified Insurer.
All provisions of such Primary Mortgage Insurance Policy have been and
are being
complied with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. No action, inaction, or event has occurred and
no
state of facts exists that has, or will result in the exclusion from, denial
of,
or defense to coverage. Any Mortgage Loan subject to a Primary Mortgage
Insurance Policy obligates the Mortgagor thereunder to maintain the Primary
Mortgage Insurance Policy and to pay all premiums and charges in connection
therewith. The mortgage interest rate for the Mortgage Loan as set forth
on the
related Mortgage Loan Schedule is net of any such insurance
premium;
(cc) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) As
to
Mortgage Loans that are not Co-op Loans and that are not secured by an
interest
in a leasehold estate, the Mortgaged Property is located in the state identified
in the related Mortgage Loan Schedule and consists of a single parcel of
real
property with a detached single family residence erected thereon, or a
townhouse, or a two-to four-family dwelling, or an individual condominium
unit
in a condominium project, or an individual unit in a planned unit development
or
a de minimis planned unit development, provided,
however,
that no
residence or dwelling is a mobile home, log home, geodesic dome or other
unique
property type. As of the date of origination, no portion of the Mortgaged
Property was used for commercial purposes, and, since the date of origination
no
portion of the Mortgaged Property has been used for commercial purposes,
except
as permitted under the Underwriting Standards.
In the
case of any Mortgaged Properties that are manufactured homes (a “Manufactured
Home Mortgage Loan”),
(i)
such Manufactured Home Mortgage Loan conforms with the applicable Xxxxxx
Xxx or
Xxxxxxx Mac requirements regarding mortgage loans related to manufactured
dwellings, (ii) the related manufactured dwelling is permanently affixed
to the
land, (iii) the related manufactured dwelling and the related land are
subject
to a Mortgage properly filed in the appropriate public recording office
and
naming Seller as mortgagee, (iv) the applicable laws of the jurisdiction
in
which the related Mortgaged Property is located will deem the manufactured
dwelling located on such Mortgaged Property to be a part of the real property
on
which such dwelling is located, and (v) such Manufactured Home Mortgage
Loan is
(x) a qualified mortgage under Section 860G(a)(3)
of the Internal Revenue Code of 1986, as amended and (y) secured by manufactured
housing treated as a single family residence under Section 25(e)(10) of
the
Code. As
of the
date of origination, no portion of the Mortgaged Property was used for
commercial purposes, and since the date of origination, no portion of the
Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered
as
being used for commercial purposes as long as the Mortgaged Property has
not
been altered for commercial purposes and is not storing any chemicals or
raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes;
28
(ee) Except
with respect to Interest Only Mortgage Loans, principal payments on the
Mortgage
Loan commenced no more than sixty (60) days after the funds were disbursed
in
connection with such Mortgage Loan;
(ff) No
Mortgage Loan imposes a Prepayment Penalty;
(gg) As
of the
date of origination of the Mortgage Loan, the Mortgaged Property was lawfully
occupied under applicable law, and all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of
the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
(hh) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the Seller’s eligibility requirements as set forth in Underwriting
Standards;
(ii) There
is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgage Property; and, to the best of the Seller’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each
such law,
rule or regulation constituting a prerequisite to use and enjoyment of
said
property;
(jj) The
related Mortgagor has not notified the Seller, and the Seller has no knowledge
of any relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act or other similar state statute;
29
(kk) No
action
has been taken or failed to be taken by the Seller on or prior to the related
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any Primary Mortgage Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Seller,
or for
any other reason under such coverage;
(ll) Each
Mortgage Loan has been serviced in all material respects in compliance
with
Accepted Servicing Practices;
(mm) With
respect to each Co-op Loan, the related Mortgage is a valid, enforceable
and
subsisting first security interest on the related cooperative shares securing
the related cooperative note, subject only to (a) liens of the cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interest in the cooperative shares
relating to each Co-op Loan (except for unpaid maintenance, assessments
and
other amounts owed to the related cooperative which individually or in
the
aggregate will not have a material adverse effect on such Co-op Loan),
which
have priority over the Seller’s security interest in such cooperative
shares;
(nn) With
respect to each Co-op Loan, a search for filings of financing statements
has
been made by a company competent to make the same, which company is acceptable
to Xxxxxx Xxx and qualified to do business in the jurisdiction where the
cooperative unit is located, and such search has not found anything which
would
materially and adversely affect the Co-op Loan;
(oo) With
respect to each Co-op Loan, the related cooperative corporation that owns
title
to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Code, is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) and is in
material compliance with applicable federal, state and local laws which,
if not
complied with, could have a material adverse effect on the Mortgaged
Property;
(pp) With
respect to each Co-op Loan, there is no prohibition against pledging the
shares
of the cooperative corporation or assigning the Co-op Lease;
(qq) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
30
(rr) With
respect to any ground lease to which a Mortgaged Property may be subject:
(i) a
true, correct and complete copy of the ground lease and all amendments,
modifications and supplements thereto is included in the Servicing File,
and the
Mortgagor is the owner of a valid and subsisting leasehold interest under
such
ground lease; (ii) such ground lease is in full force and effect, unmodified
and
not supplemented by any writing or otherwise except as contained in the
Mortgage
File; (iii) all rent, additional rent and other charges reserved therein
have
been fully paid to the extent payable as of the related Closing Date; (iv)
the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any
of the
terms of such ground lease, and there are no circumstances which, with
the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not
in
default under any of the terms or provisions of such ground lease on the
part of
the lessor to be observed or performed; (vii) the lessor under such ground
lease
has satisfied any repair or construction obligations due as of the related
Closing Date pursuant to the terms of such ground lease; (viii) the execution,
delivery and performance of the Mortgage do not require the consent (other
than
those consents which have been obtained and are in full force and effect)
under,
and will not contravene any provision of or cause a default under, such
ground
lease; (ix) the ground lease term extends beyond the maturity date of the
related Mortgage Loan; and (x) the Purchaser has the right to cure defaults
on
the ground lease;
(ss) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the borrower and no claims will
arise
as to broker fees that are double charged and for which the borrower would
be
entitled to reimbursement;
(tt) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(uu) Except
as
provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other documents set forth in Exhibit A-1 and required
to be
delivered on the related Closing Date have been delivered to the Purchaser
or
its designee;
(vv) To
the
Seller’s knowledge, all information supplied by, on behalf of, or concerning the
Mortgagor is true, accurate and complete and does not contain any statement
that
is or will be inaccurate or misleading in any material respect;
(ww) The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by applicable law with respect to the
making
of adjustable rate mortgage loans. The Seller shall maintain such statement
in
the Servicing File;
(xx) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
100%. No Second Lien Mortgage Loan has an CLTV in excess of 100%;
(yy) Either
(a) no consent for the Second Lien Mortgage Loan is required by the holder
of
the related First Lien or (b) such consent has been obtained and is contained
in
the Mortgage File;
31
(zz) With
respect to any Second Lien Mortgage Loan, the Seller has not received notice
of:
(1) any proceeding for the total or partial condemnation of any Mortgaged
Property, (2) any subsequent, intervening mortgage, lien, attachment, lis
pendens or other encumbrance affecting any Mortgaged Property or (3) any
default
under any mortgage, lien or other encumbrance senior to each
Mortgage;
(aaa) No
Second
Lien Mortgage Loan is a “home equity line of credit”;
(bbb) As
of the
Closing Date, the Seller has not received a notice of default of a First
Lien
which has not been cured;
(ccc) No
First
Lien provides for negative amortization;
(ddd) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable and no
Mortgage
Loan is covered by HOEPA. No Mortgage Loan originated or modified on or
after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act;
(eee) No
Mortgagor was required to purchase any single premium credit insurance
policy
(e.g. life, disability, property, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g. life, mortgage, disability, property, accident,
unemployment or health insurance product) in connection with the origination
of
the Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies or debt cancellation agreements
as part
of the origination of, or as a condition to closing, such Mortgage
Loan;
(fff) The
origination and servicing practices with respect to each Mortgage Note
and
Mortgage have been legal and in accordance with applicable laws and regulations,
and in all material respects proper and prudent in the mortgage origination
and
servicing business. With respect to escrow deposits and payments that the
Seller
is entitled to collect, all such payments are in the possession of, or
under the
control of, the Seller, and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made.
All
escrow payments have been collected and are being maintained in full compliance
with applicable state and federal law and the provisions of the related
Mortgage
Note and Mortgage. As to any Mortgage Loan that is the subject of an escrow,
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every escrowed item that remains unpaid
and has
been assessed but is not yet due and payable. No escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized under
any
Mortgage or the related Mortgage Note. All Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the
terms of
the related Mortgage Note. Any interest required to be paid pursuant to
state
and local law has been properly paid and credited;
(ggg) No
Mortgage Loan is a Convertible Mortgage Loan;
(hhh) With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
32
(iii) Any
future advances made to the Mortgagor prior to the applicable Cut-off Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the Mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Mae
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jjj) There
is
no proceeding pending or threatened for the total or partial condemnation
of the
Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for
the
Mortgage Loan or the use for which the premises were intended and each
Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and the Seller has no knowledge
of any
such proceedings in the future;
(kkk) No
Mortgage Loan was made in connection with the construction (other than
a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property (other than
a tax
deferred exchange under Section 1031 of the Code);
(lll) If
applicable, with respect to each Mortgage, the Seller has within the last
twelve
months (unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the
amount
of such payments so that, assuming all required payments are timely made,
any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(mmm) As
to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
the Seller has full right and authority and is not precluded by law or
contract
from furnishing such information to the Purchaser and the Purchaser is
not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. The Seller has and shall in its capacity as servicer, for
each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis;
(nnn) If
the
Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground
lease
does not provide for termination of the lease in the event of lessee’s default
without the Mortgagee being entitled to receive written notice of, and
a
reasonable opportunity to cure the default; (4) the ground lease permits
the
mortgaging of the related Mortgaged Property; (5) the ground lease protects
the
Mortgagee’s interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid;
and (7) the use of leasehold estates for residential properties is a widely
accepted practice in the jurisdiction in which the Mortgaged Property is
located;
33
(ooo) Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
issued by First American Real Estate Tax Service, and such contract is
transferable;
(ppp) The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Seller’s underwriting
guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
(qqq) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser and any Mortgage Loan
for
which the related Mortgage has been recorded in the name of MERS) have
been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Seller, or is in
the
process of being recorded;
(rrr) On
or
prior to the related Closing Date, the Mortgagor has not filed a bankruptcy
petition or has not become the subject of involuntary bankruptcy proceedings
or
has not consented to the filing of a bankruptcy proceeding against it or
to a
receiver being appointed in respect of the related Mortgaged
Property;
(sss) No
Mortgagor with respect to any Mortgage Loan originated on or after August
1,
2004 is required under the Mortgage or Mortgage Note to submit to arbitration
to
resolve any dispute arising out of or relating in any way to the mortgage
loan
transaction;
(ttt) The
Seller has complied with all applicable anti-money laundering laws, executive
orders and regulations, including without limitation the USA Patriot Act
of
2001;
(uuu) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to
Section
2.07 of this Agreement shall be delivered to the Purchaser or its designee
all
in compliance with the specific requirements of Section 2.07. With respect
to
each Mortgage Loan, the Seller will be in possession of a complete Mortgage
File
in compliance with Exhibit
A-1
hereto,
except for such documents as will be delivered to the Purchaser or its
designee;
(vvv) With
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate is the related Gross Margin;
(www) The
Seller has no knowledge of any circumstances or conditions with respect
to the
related Mortgage, Mortgaged Property, Mortgagor, Mortgage File or the related
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors that invest in prime mortgage loans similar to
the
Mortgage Loan to regard the Mortgage Loan as an unacceptable
investment;
34
(xxx) With
respect to the Mortgage Loans, the Mortgagor was offered mortgage loan
products
suitable for such Mortgagor and not designed for less creditworthy
borrowers;
(yyy) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective criteria which relate the Mortgagor ’s income, assets and
liabilities (except in the case of loan programs which do not require the
Mortgagor to report the Mortgagor ’s income or assets, such as “no income, no
assets” lending programs or which rely on the Mortgagor ’s representation of the
Mortgagor ’s income, such as “stated income” lending programs) to the proposed
payment and such underwriting methodology does not rely on the extent of
the
Mortgagor ’s equity in the collateral as the principal determining factor in
approving such credit extension. Such underwriting methodology determined
that
at the time of origination (application/approval) the Mortgagor had the
reasonable ability to make timely payments on the Mortgage Loan;
and
(zzz) No
Mortgagor was charged Points and Fees, whether or not amortized or financed,
greater than 5% of the principal amount of such Mortgage Loan. For purposes
of
this representation, such 5% limitation is calculated in accordance with
Xxxxxx
Mae's anti-predatory lending requirements as set forth in the Xxxxxx Mae
Guides
and Points and Fees (x) include origination, underwriting, broker and finder
fees and charges that the Mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the Mortgagee or a third party,
and (y)
exclude bona fide discount points, fees paid for actual services rendered
in
connection with the origination of the Mortgage Loan (such as attorneys'
fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes
and
insurance premiums, and other miscellaneous fees and charges which miscellaneous
fees and charges, in total, do not exceed 0.25% of the principal amount
of such
Mortgage Loan (collectively, “Points and Fees”). All fees and charges (including
finance charges) and whether or not financed, assessed, collected or to
be
collected in connection with the origination and servicing of each Mortgage
Loan
has been disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation.
Section
3.03. Repurchase;
Substitution.
It
is
understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and
delivery
of the Mortgage File to the Purchaser, or its designee, and shall inure
to the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination,
or lack of examination, of any Mortgage Loan Document. Upon discovery by
the
Seller or the Purchaser of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the others.
The
Seller shall have a period of ninety (90) days from the earlier of its
discovery
or its receipt of notice of any such breach within which to correct or
cure such
breach. The Seller hereby covenants and agrees that (except as provided
in the
previous sentence with respect to certain breaches for which no substitution
is
permitted) if any such breach is not corrected or cured within such ninety
(90)
day period, the Seller shall, at the Purchaser’s option, either repurchase such
Mortgage Loan at the Repurchase Price or substitute a mortgage loan for
the
Defective Mortgage Loan as provided below. In the event that any such breach
shall involve any representation or warranty set forth in Section 3.01,
and such
breach is not cured within ninety (90) of the earlier of either discovery
by or
notice to the Seller of such breach, all affected Mortgage Loans shall,
at the
option of the Purchaser, be repurchased by the Seller at the Repurchase
Price.
Any such repurchase shall be accomplished by deposit in the Custodial Account
of
the amount of the Repurchase Price.
35
Notwithstanding
the foregoing paragraph, any breach of any representation or warranty set
forth
in any of clause (i), (dd), (ff), (tt), (ddd), (eee), (mmm), (sss), (xxx),
(yyy)
or (zzz) of Section 3.02 shall automatically be deemed to have had a material
and adverse effect on the Purchaser. With respect to each such affected
Mortgage
Loan, the Seller shall, within sixty (60) days after the earlier of either
discovery by, or notice to, the Seller of such breach, repurchase such
Mortgage
Loan at the Repurchase Price.
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage
Loan that
is a MERS Mortgage Loan, the Seller shall either (i) cause MERS to execute
and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller as
the beneficial holder of such Mortgage Loan.
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this Section
3.03
as a result of a breach of any of the representations and warranties set
forth
in Section 3.02, the Seller may, with the Purchaser’s prior consent, which
consent shall not be unreasonably withheld, within 180 days from the related
Closing Date, remove such defective Mortgage Loan from the terms of this
Agreement and substitute another mortgage loan for such defective Mortgage
Loan,
in lieu of repurchasing such defective Mortgage Loan. Any substitute Mortgage
Loan shall (a) have a principal balance at the time of substitution not
in
excess of the principal balance of the defective Mortgage Loan (the amount
of
any difference, plus one month’s interest thereon at the Mortgage Interest Rate
borne by the defective Mortgage Loan, being paid by the Seller and deemed
to be
a Principal Prepayment to be deposited by the Seller in the Custodial Account),
(b) have a Mortgage Interest Rate not less than, and not more than one
percentage point greater than, the Mortgage Interest Rate of the removed
Mortgage Loan, (c) have a remaining term to stated maturity not later than,
and
not more than one year less than, the remaining term to stated maturity
of the
removed Mortgage Loan, (d) have a Loan-to-Value Ratio at origination no
greater
than that of the removed Mortgage Loan, (e) with respect to any Second
Lien
Mortgage Loan, have an Combined Loan-to-Value Ratio at origination no greater
than that of the removed Mortgage Loan, (f) have the same lien priority
as that
of the removed Mortgage Loan and (g) be, in the reasonable determination
of the
Purchaser, in material compliance with the representations and warranties
contained in this Agreement and described in Section 3.02 as of the date
of
substitution.
The
Seller shall amend the related Mortgage Loan Schedule to reflect the withdrawal
of the removed Mortgage Loan from this Agreement and the substitution of
such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. The Monthly Payment on a substitute Mortgage Loan due on the Due
Date in
the month of substitution shall be the property of the Seller and the Monthly
Payment on the Defective Mortgage Loan for which the substitution is made
due on
the such date shall be the property of the Purchaser.
36
It
is
understood and agreed that the obligation of the Seller set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage
Loan,
and to indemnify Purchaser pursuant to Section 7.01, constitutes the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Seller fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a
defective
Mortgage Loan to Purchaser’s reasonable satisfaction in accordance with this
Section 3.03, or to indemnify Purchaser pursuant to Section 7.01, that
failure
shall, upon compliance by the Purchaser with the next to the last paragraph
of
this Section 3.03, be an Event of Default and the Purchaser shall be entitled
to
pursue all available remedies. No provision of this paragraph shall affect
the
rights of the Purchaser to terminate this Agreement for cause, as set forth
in
Sections 8.01 and 9.01.
Any
cause
of action against the Seller relating to or arising out of the breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the
Seller
or notice thereof by the Purchaser to the Seller, (ii) failure by the Seller
to
cure such breach or repurchase such Mortgage Loan as specified above, and
(iii)
demand upon the Seller by the Purchaser for compliance with this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is
not in
default or as to which no default is imminent, Purchaser may, in connection
with
any repurchase or substitution of a Defective Mortgage Loan pursuant to
this
Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on “prohibited transactions” of such REMIC
(as defined in Section 860F of the Code) or otherwise subject the REMIC
to tax,
or (ii) cause the REMIC to fail to qualify as a REMIC at any time.
If
a
Mortgagor is thirty (30) days or more delinquent with respect to the first
Monthly Payment due to the Purchaser on the related Mortgage Loan immediately
following the related Closing Date, the Seller, at the Purchaser’s option, shall
promptly repurchase such Mortgage Loan from the Purchaser within thirty
(30)
calendar days’ of receipt of written notice from the Purchaser. Any repurchase
pursuant to this Section 3.04 shall be effected in accordance with the
procedures set forth in Section 3.03 hereof, however, any such repurchase
shall
be made at the Repurchase Price.
Section
3.05. Purchase
Price Protection.
With
respect to any Mortgage Loan that prepays in full during the first sixty
(60)
days following the related Closing Date, the Seller shall reimburse the
Purchaser the amount (if any) by which the Purchase Price paid by the Purchaser
to the Seller exceeded 100% of the outstanding scheduled principal balance
of
the Mortgage Loan as of the related Cut-off Date, within thirty (30) days
of
such payoff. Upon any assignment of a Mortgage Loan and/or this Agreement,
the
Purchaser may at its option retain its rights under this Section 3.05
notwithstanding such assignment.
37
ARTICLE
IV
Section
4.01. The
Seller to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer
the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone or through
subservicers or agents, to do or cause to be done any and all things in
connection with such servicing and administration which the Seller may
deem
necessary or desirable and consistent with the terms of this Agreement
and with
Accepted Servicing Practices. The Seller shall service and administer the
Mortgage Loans through the exercise of the same care that it customarily
employs
for its own account. The Seller may perform its servicing responsibilities
through agents or independent contractors, but shall not thereby be released
from any of its responsibilities hereunder. Notwithstanding anything to
the
contrary, the Seller may delegate any of its duties under this Agreement
to one
or more of its Affiliates without regard to any of the requirements of
this
Section; provided,
however,
that
the Seller shall not be released from any of its responsibilities hereunder
by
virtue of such delegation.
Except
as
set forth in this Agreement, the Seller shall service the Mortgage Loans
in
compliance with the servicing provisions of the Xxxxxx Xxx Guides (special
servicing option), which include, but are not limited to, provisions regarding
the liquidation of Mortgage Loans, the collection of Mortgage Loan payments,
the
payment of taxes, insurance and other charges, the maintenance of hazard
insurance with a Qualified Insurer, the maintenance of mortgage impairment
insurance, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of
Primary
Mortgage Insurance Policies, insurance claims, the title, management of
REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Files, annual
statements, and examination of records and facilities. In the event of
any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and any of the servicing provisions of the Xxxxxx Mae
Guides,
the provisions of this Agreement shall control and be binding upon the
Purchaser
and the Seller.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary
any term
of any Mortgage Loan or consent to the postponement of any such term or
in any
manner grant indulgence to any Mortgagor if in the Seller’s reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided,
however,
that
unless the Mortgagor is in default with respect to the Mortgage Loan, or
such
default is, in the judgment of the Seller, imminent, and the Seller has
obtained
the prior written consent of the Purchaser, the Seller shall not permit
any
modification with respect to any Mortgage Loan that would which change
the
Mortgage Interest Rate, forgive the payment of any principal or interest,
reduce
or increase the outstanding principal balance (except for actual payments
of
principal), make any future advances or extend the final maturity date,
as the
case may be, with respect to such Mortgage Loan. In the event of any such
modification that permits the deferral of interest or principal payments
on any
Mortgage Loan, the Seller shall, on the Business Day immediately preceding
the
Remittance Date in any month in which any such principal or interest payment
has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 4.04, the difference between (a) the otherwise
scheduled
Monthly Payment and (b) the amount paid by the Mortgagor. The Seller shall
be
entitled to reimbursement for such advances to the same extent as for all
other
advances pursuant to Section 4.05. Without limiting the generality of the
foregoing, the Seller shall continue, and is hereby authorized and empowered
by
the Purchaser when the Seller believes it appropriate and reasonable in
its best
judgment, to prepare, execute and deliver, all instruments of satisfaction
or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties and to institute foreclosure proceedings or obtain
a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of
the
Purchaser pursuant to the provisions of Section 4.13. Notwithstanding anything
herein to the contrary, the Seller may not enter into a forbearance agreement
or
similar arrangement with respect to any Mortgage Loan which runs more than
180
days after the first delinquent Due Date without the prior consent of the
Purchaser. Any such agreement shall be approved by any applicable holder
of a
Primary Mortgage Insurance Policy, if required.
38
The
Seller is authorized and empowered by the Purchaser, in its own name, when
the
Seller believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS® System, or cause the removal from the registration of
any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the
Purchaser, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage
in the
name of MERS, solely as nominee for the Purchaser and its successors and
assigns.
With
respect to requests by the Seller to modify the terms of any Mortgage Loan
or to
enter into any forbearance agreement, the Purchaser shall be deemed to
have
given consent in connection with a particular matter if the Purchaser does
not
affirmatively grant or deny consent within twenty-one (21) calendar days
from
the date the Purchaser receives a written request for consent for such
matter
from the Seller.
The
Seller shall accurately and fully report its borrower credit files related
to
the Mortgage Loans to Equifax, Transunion and Experian in a timely
manner.
Section
4.02. Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be serviced
subject to this Agreement, the Seller will proceed diligently to collect
all
payments due under each Mortgage Loan when the same shall become due and
payable
and shall, to the extent such procedures shall be consistent with this
Agreement, Accepted Servicing Practices, and the terms and provisions of
related
Primary Mortgage Insurance Policy, follow such collection procedures as
it
follows with respect to mortgage loans comparable to the Mortgage Loans
and held
for its own account. Further, the Seller will take special care in ascertaining
and estimating annual escrow payments, and all other charges that, as provided
in the Mortgage, will become due and payable, so that the installments
payable
by the Mortgagors will be sufficient to pay such charges as and when they
become
due and payable.
39
Section
4.03. Realization
Upon Defaulted Mortgage Loans.
The
Seller shall use commercially reasonable efforts, consistent with the procedures
that the Seller would use in servicing loans for its own account, Accepted
Servicing Practices, any Primary Mortgage Insurance and the best interest
of
Purchaser, to foreclose upon or otherwise comparably convert the ownership
of
properties securing such of the Mortgage Loans as come into and continue
in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 4.01. Foreclosure or comparable
proceedings shall be initiated pursuant to Xxxxxx Xxx guidelines and applicable
state law with respect to Mortgaged Properties for which no satisfactory
arrangements can be made for collection of delinquent payments. The Seller
shall
use its best efforts to realize upon defaulted Mortgage Loans in such manner
as
will maximize the receipt of principal and interest by the Purchaser, taking
into account, among other things, the timing of foreclosure proceedings.
The
foregoing is subject to the provisions that, in any case in which the Mortgaged
Property shall have suffered damage, the Seller shall not be required to
expend
its own funds toward the restoration of such property unless it shall determine
in its discretion (i) that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan to the Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable
by the
Seller through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 4.05. The Seller shall notify
the
Purchaser in writing (which may be by electronic mail) of the commencement
of
foreclosure proceedings. The Seller shall be responsible for all costs
and
expenses incurred by it in any such proceedings or functions; provided,
however,
that it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 4.05. Notwithstanding anything to the contrary
contained
herein, in connection with a foreclosure or acceptance of a deed in lieu
of
foreclosure, in the event the Seller has reasonable cause to believe that
a
Mortgaged Property is contaminated by hazardous or toxic substances or
wastes,
or if the Purchaser otherwise requests an environmental inspection or review
of
such Mortgaged Property, such an inspection or review is to be conducted
by a
qualified inspector at the Purchaser’s expense. Upon completion of the
inspection, the Seller shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Seller shall proceed
with respect to the Mortgaged Property.
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Seller, with the consent of the
Purchaser as required pursuant to this Agreement, within three (3) years
after
becoming an REO Property, unless the Seller provides to the trustee under
such
REMIC an opinion of counsel to the effect that the holding of such REO
Property
subsequent to three years after its becoming REO Property, will not result
in
the imposition of taxes on “prohibited transactions” as defined in Section 860F
of the Code, or cause the transaction to fail to qualify as a REMIC at
any time
that certificates are outstanding. The Seller shall manage, conserve, protect
and operate each such REO Property for the certificateholders solely for
the
purpose of its prompt disposition and sale in a manner which does not cause
such
property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code, or any “net income from foreclosure property”
which is subject to taxation under the REMIC provisions of the Code. Pursuant
to
its efforts to sell such property, the Seller shall either itself or through
an
agent selected by the Seller, protect and conserve such property in the
same
manner and to such an extent as is customary in the locality where such
property
is located. Additionally, the Seller shall provide the Purchaser or any
master
servicer with information sufficient to perform the tax withholding and
reporting related to Sections 1445 and 6050J of the Code.
40
The
Seller shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts
with a
commercial bank, a savings bank or a savings and loan association (which
may be
a depository Affiliate of the Seller) which meets the guidelines set forth
by
Xxxxxx Mae or Xxxxxxx Mac as an eligible depository institution for custodial
accounts. Each Custodial Account shall be an Eligible Account. Funds deposited
in a Custodial Account may be drawn on in accordance with Section 4.05.
The
creation of any Custodial Account shall be evidenced by a letter agreement
in
the form shown in Exhibit
B
hereto.
The original of such letter agreement shall be furnished to the Purchaser
on the
initial Closing Date, and upon the request of any subsequent
purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, within
one (1)
Business Day of receipt thereof, and retain therein the following payments
and
collections received or made by it subsequent to the Cut-off Date, or received
by it prior to the Cut-off Date but allocable to a period subsequent thereto,
other than in respect of principal and interest on the Mortgage Loans due
on or
before the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant
to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
loan documents or applicable law;
41
(vi) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller’s normal servicing procedures, the
loan documents or applicable law;
(vii) any
Monthly Advances;
(viii) Compensating
Interest, if any, for the month of distribution. Such deposit shall be
made from
the Seller’s own funds, without reimbursement therefor;
(ix) all
proceeds of any Mortgage Loan repurchased in accordance with Sections
3.03;
(x) any
amounts required to be deposited by the Seller pursuant to Section 4.11
in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Seller’s own funds, without reimbursement
therefor; and
(xi) any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01 or Section 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of
the
foregoing, payments in the nature of late payment charges, assumption fees
and
other ancillary fees, to the extent permitted by Section 6.01, need not
be
deposited by the Seller in the Custodial Account.
The
Seller may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Seller for the benefit of the Seller, which
shall
mature not later than the Business Day next preceding the Remittance Date
next
following the date of such investment (except that (A) any investment in
the
Eligible Institution with which the Custodial Account is maintained may
mature
on such Remittance Date and (B) any other investment may mature on such
Remittance Date if the Seller shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to
the
Purchaser) and shall not be sold or disposed of prior to maturity.
Notwithstanding anything to the contrary herein and above, all income and
gain
realized from any such investment shall be for the benefit of the Seller
and
shall be subject to withdrawal by the Seller from the Custodial Account
pursuant
to Section 4.05(iv). The amount of any losses incurred in respect of any
such
investments shall be deposited in the Custodial Account by the Seller out
of its
own funds immediately as realized.
Section
4.05. Permitted
Withdrawals from the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for
the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for
in
Section 5.01;
42
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fee) of principal and/or interest respecting which any such advance was
made, it
being understood that, in the case of such reimbursement, the Seller’s right
thereto shall be prior to the rights of the Purchaser, except that, where
the
Seller is required to repurchase a Mortgage Loan, pursuant to Section 3.03,
the
Seller’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to such Section and all other
amounts
required to be paid to the Purchaser with respect to such Mortgage
Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Seller’s right to reimburse itself pursuant to this subclause (iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and REO
Disposition Proceeds;
(iv) to
pay to
itself as part of its servicing compensation: (a) any interest earned on
funds
or any investment earnings in the Custodial Account net of any losses on
such
investments (all such amounts to be withdrawn monthly not later than each
Remittance Date), and (b) to the extent not otherwise retained, the Servicing
Fee from that portion of any payment or recovery as to interest with respect
to
a particular Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 all amounts received thereon and not distributed as of the
date on
which the related Repurchase Price is determined;
(vi) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances
to the
extent not fully reimbursed pursuant to Section 4.05(ii) or (iii)
above;
(vii) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(viii) to
remove
funds inadvertently placed in the Custodial Account by the Seller or for
which
amounts previously deposited are returned unpaid by the related Mortgagor’s
banking institution; and
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06. Establishment
of Escrow Accounts; Deposits in Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart
from any
of its own funds and general assets and shall establish and maintain one
or more
Escrow Accounts. Each Escrow Account shall be an Eligible Account. Funds
deposited in the Escrow Account may be drawn on by the Seller in accordance
with
Section 4.07. The creation of any Escrow Account shall be evidenced by
a letter
agreement in the form shown in Exhibit
C.
The
original of such letter agreement shall be furnished to the Purchaser on
the
initial Closing Date, and upon request to any subsequent purchaser.
43
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis,
within
two (2) Business Days of receipt thereof, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms
of this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair
of any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. The Seller shall
be
entitled to retain any interest paid on funds deposited in an Escrow Account
by
the depository institution other than interest on escrowed funds required
by law
to be paid to the Mortgagor and, to the extent required by law, the Seller
shall
pay interest on escrowed funds to the Mortgagor notwithstanding that such
Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
Section
4.07. Permitted
Withdrawals from the Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items for the related
Mortgage;
(ii) to
reimburse the Seller for any Servicing Advance made by the Seller with
respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
44
(vi) to
pay to
the Seller, or to the Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this
Agreement;
(viii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(ix) to
remove
funds inadvertently placed in the Escrow Account by the Seller or for which
amounts previously deposited are returned unpaid by the related Mortgagor’s
banking institution; and
(x) to
clear
and terminate the Escrow Account upon the termination of this
Agreement.
Section
4.08. Payment
of Taxes, Insurance and Charges; Maintenance of Primary Mortgage Insurance;
Collections Thereunder.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates
and other
charges which are or may become a lien upon the Mortgaged Property and
the
status of primary mortgage insurance premiums (if any) and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such
purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Seller in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Seller shall determine
that any such payments are made by the Mortgagor at the time they first
become
due. The Seller assumes full responsibility for the timely payment of all
ground
rents, taxes, assessments, water rates and other charges and shall effect
timely
payments of all such bills irrespective of the Mortgagor’s faithful performance
in the payment of same or the making of the Escrow Payments and shall make
advances from its own funds to effect such payments subject to its ability
to
recover such Servicing Advances pursuant to Sections 4.05(ii), (iii) and
(vi).
Notwithstanding the foregoing, if the Seller reasonably determines that
any such
Servicing Advance would not be recoverable from amounts collected on the
related
Mortgage Loan, the Seller shall have no obligation to make such Servicing
Advance. Any such determination shall be evidenced by an Officer’s Certificate
delivered to the Purchaser indicating the reasons therefor.
The
Seller will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each first lien
Mortgage
Loan for which such coverage is herein required. Such coverage will be
maintained until the Loan-to-Value ratio of the related Mortgage Loan is
reduced
to the amount for which Xxxxxx Mae no longer requires such insurance to
be
maintained. The Seller will not cancel or refuse to renew any Primary Mortgage
Insurance Policy in effect on the related Closing Date that is required
to be
kept in force under this Agreement unless a replacement Primary Mortgage
Insurance Policy for such canceled or non-renewed policy is obtained from
and
maintained with a Qualified Insurer. The Seller shall not take any action
which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Seller would have
been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Seller
shall
promptly notify the insurer under the related Primary Mortgage Insurance
Policy,
if any, of such assumption or substitution of liability in accordance with
the
terms of such policy and shall take all actions which may be required by
such
insurer as a condition to the continuation of coverage under the Primary
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability,
the
Seller shall obtain a replacement Primary Mortgage Insurance Policy as
provided
above.
45
In
connection with its activities as servicer, the Seller agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Primary Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to
take
such action as shall be necessary to permit recovery under any Primary
Mortgage
Insurance Policy respecting a defaulted first lien Mortgage Loan. Pursuant
to
Section 4.04, any amounts collected by the Seller under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section
4.09. Transfer
of Accounts.
The
Seller may transfer a Custodial Account or an Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
providing notice of the transfer to the Purchaser.
Section
4.10. Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to Xxxxxx Xxx or Xxxxxxx
Mac
and customary in the area where the Mortgaged Property is located in an
amount
which is equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer. If required by the Flood Disaster
Protection Act of 1973, as amended, each Mortgage Loan shall be covered
by a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration in effect with an insurance carrier acceptable
to Xxxxxx Mae or Xxxxxxx Mac, in an amount representing coverage not less
than
the least of (i) the outstanding principal balance of the Mortgage Loan,
(ii)
the maximum insurable value of the improvements securing such Mortgage
Loan and
(iii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during the
term of
the Mortgage Loan, the Seller determines in accordance with applicable
law and
pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located
in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection
Act of
1973, as amended, the Seller shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if the related
Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Seller shall immediately
force
place the required flood insurance on the Mortgagor’s behalf. To the extent the
payment of the related premiums will not, in the Seller’s reasonable
determination, constitute non-recoverable Servicing Advances, the Seller
shall
also maintain on each REO Property, fire and hazard insurance with extended
coverage in an amount which is at least equal to the maximum insurable
value of
the improvements which are a part of such property, and, to the extent
required
and available under the Flood Disaster Protection Act of 1973, as amended,
flood
insurance in an amount as provided above. Any amounts collected by the
Seller
under any such policies other than amounts to be deposited in the Escrow
Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with Accepted Servicing
Practices, shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05. It is understood and agreed that no other additional
insurance need be required by the Seller or maintained on property acquired
in
respect of the Mortgage Loan, other than pursuant to this Agreement, the
Xxxxxx
Xxx Guides or such applicable state or federal laws and regulations as
shall at
any time be in force and as shall require such additional insurance. All
such
policies shall be endorsed with standard mortgagee clauses with loss payable
to
the Seller and its successors and/or assigns and shall provide for at least
thirty (30) days prior written notice of any cancellation, reduction in
the
amount or material change in coverage to the Seller. The Seller shall not
interfere with the Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent, provided,
however,
that
the Seller shall not accept any such insurance policies from insurance
companies
unless such companies are Qualified Insurers.
46
Section
4.11. Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller (or an Affiliate of the Seller) shall obtain and
maintain
a blanket policy issued by an issuer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
insuring against hazard losses on all of the Mortgage Loans, then, to the
extent
such policy provides coverage in an amount equal to the amount required
pursuant
to Section 4.10 and otherwise complies with all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations
as set
forth in Section 4.10, it being understood and agreed that such policy
may
contain a deductible clause, in which case the Seller shall, in the event
that
there shall not have been maintained on the related Mortgaged Property
or REO
Property a policy complying with Section 4.10, and there shall have been
a loss
which would have been covered by such policy, deposit in the Custodial
Account
the amount not otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as servicer of the
Mortgage
Loans, the Seller agrees to prepare and present, on behalf of the Purchaser,
claims under any such blanket policy in a timely fashion in accordance
with the
terms of such policy. Upon request of the Purchaser, the Seller shall cause
to
be delivered to the Purchaser a certified true copy of such policy and
shall use
commercially reasonable efforts to obtain a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without thirty (30) days’ prior written notice to the
Purchaser.
47
The
Seller shall maintain, at its own expense, a blanket Fidelity Bond and
an errors
and omissions insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting in any capacity with
regard
to the Mortgage Loans to handle funds, money, documents and papers relating
to
the Mortgage Loans. The Fidelity Bond shall be in the form of a mortgage
banker’s blanket bond and shall protect and insure the Seller against losses,
including forgery, theft, embezzlement and fraud of such persons. The errors
and
omissions insurance shall protect and insure the Seller against losses
arising
out of errors and omissions and negligent acts of such persons. Such errors
and
omissions insurance shall also protect and insure the Seller against losses
in
connection with the failure to maintain any insurance policies required
pursuant
to this Agreement and the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring the Fidelity Bond or errors and
omissions insurance shall diminish or relieve the Seller from its duties
and
obligations as set forth in this Agreement. The minimum coverage under
any such
bond and insurance policy shall be at least equal to the corresponding
amounts
required by Xxxxxx Xxx in the Xxxxxx Mae Guides or by Xxxxxxx Mac in the
Xxxxxxx
Mac Guides. The Seller shall deliver to the Purchaser a certificate from
the
surety and the insurer as to the existence of the Fidelity Bond and errors
and
omissions insurance policy and shall obtain a statement from the surety
and the
insurer that such Fidelity Bond or insurance policy shall in no event be
terminated or materially modified without thirty (30) days’ prior written notice
to the Purchaser. Upon request by the Purchaser, the Seller shall provide
the
Purchaser with an insurance certificate certifying coverage under this
Section
4.12, and will provide an update to such certificate upon request, or upon
renewal or material modification of coverage.
Section
4.13. Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure,
by deed
in lieu of foreclosure or other method resulting in full or partial satisfaction
of the related Mortgage, the deed or certificate of sale shall be taken
in the
name of the Purchaser or its designee, or in the event the Purchaser or
its
designee is not authorized or permitted to hold title to real property
in the
state where the REO Property is located, or would be adversely affected
under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an Opinion of Counsel obtained by the Seller,
at the
expense of the Purchaser, from an attorney duly licensed to practice law
in the
state where the REO Property is located. Any Person or Persons holding
such
title other than the Purchaser shall acknowledge in writing that such title
is
being held as nominee for the benefit of the Purchaser.
The
Seller shall notify the Purchaser in accordance with the Xxxxxx Xxx Guides
of
each acquisition of REO Property upon such acquisition, and thereafter
assume
the responsibility for marketing such REO Property in accordance with Accepted
Servicing Practices. Thereafter, the Seller shall continue to provide certain
administrative services to the Purchaser relating to such REO Property
as set
forth in this Section 4.13.
The
Seller shall, either itself or through an agent selected by the Seller,
and in
accordance with the Xxxxxx Mae Guides manage, conserve, protect and operate
each
REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same
manner
that similar property in the same locality as the REO Property is managed.
The
Seller shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least annually thereafter or more frequently as required by the
circumstances. The Seller shall make or cause to be made a written report
of
each such inspection. Such reports shall be retained in the Servicing
File.
48
The
Seller shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within three (3)
years
after title has been taken to such REO Property, unless the Seller determines,
and gives an appropriate notice to the Purchaser to such effect, that a
longer
period is necessary for the orderly liquidation of such REO Property. If
a
longer period than three (3) years is permitted under the foregoing sentence
and
is necessary to sell any REO Property, the Seller shall report monthly
to the
Purchaser as to the progress being made in selling such REO Property. If
as of
the date title to any REO Property was acquired by the Seller there were
outstanding unreimbursed Servicing Advances with respect to the REO Property,
the Seller shall be entitled to immediate reimbursement from the Purchaser
for
any related unreimbursed Servicing Advances. The disposition of REO Property
shall be carried out by the Seller at such price, and upon such terms and
conditions, as the Seller deems to be in the best interests of the Purchaser.
The Seller shall update the Purchaser from time-to-time as to the status
of each
REO Property.
Section
4.14. Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Seller shall execute and deliver to
the
Mortgagor any and all necessary notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the maturity
date if
required under applicable law.
ARTICLE
V
Section
5.01. Distributions.
On
each
Remittance Date, the Seller shall distribute by wire transfer to the Purchaser
(i) all amounts credited to the Custodial Account as of the close of business
on
the preceding Determination Date, net of charges against or withdrawals
from the
Custodial Account pursuant to Section 4.05, plus (ii) all Monthly Advances,
if
any, which the Seller is obligated to distribute pursuant to Section 5.03,
plus
(iii) all payments in respect of Compensating Interest for such Remittance
Date
required to be deposited in the Custodial Account pursuant to Section
4.04(viii), minus (iv) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date, which amounts shall be remitted on the Remittance Date
next
succeeding the Due Period for such amounts, and any Principal Prepayments
received during the month of such Remittance Date, which amounts shall
be
remitted on the next succeeding Remittance Date.
With
respect to any remittance received by the Purchaser after the Business
Day
following the Business Day on which such payment was due, the Seller shall
pay
to the Purchaser interest on any such late payment at an annual rate equal
to
the Prime Rate, adjusted as of the date of each change, plus two percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Seller
on
the date such late payment is made and shall cover the period commencing
with
the day following the second Business Day on which such payment was due
and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Seller of any such interest
shall
not be deemed an extension of time for payment or a waiver of any Event
of
Default by the Seller.
49
Section
5.02. Statements
to the Purchaser.
The
Seller shall furnish to the Purchaser an individual loan accounting report,
as
of the last Business Day of each month, in the Seller’s assigned loan number
order to document Mortgage Loan payment activity on an individual Mortgage
Loan
basis. With respect to each month, the corresponding individual loan accounting
report shall be received by the Purchaser no later than the fifth (5th)
Business
Day of the following month in a format mutually agreed upon by both the
Purchaser and the Seller and in hard copy, which report shall contain the
following:
(i) with
respect to each Monthly Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment,
including
the date of such prepayment, and any Prepayment Penalties or premiums,
along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.04);
(ii) with
respect to each Monthly Payment, the amount of such remittance allocable
to
interest;
(iii) the
amount of servicing compensation received by the Seller during the prior
collection period;
(iv) the
aggregate Scheduled Principal Balance of the Mortgage Loans;
(v) the
aggregate of any expenses reimbursed to the Seller during the prior distribution
period pursuant to Section 4.05;
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, and (3) 90 days or more;
(b) as
to which foreclosure has commenced; and (c) as to which REO Property has
been
acquired; and
(vii) the
amount of any Monthly Advances.
The
Seller shall also provide a monthly servicing report, sorted in the Purchaser’s
assigned loan number order, in the form of reports S-50Y and P-4DL, attached
hereto as Exhibit G
and
Exhibit
H,
respectively (or in such other forms as the Purchaser and the Seller may
agree),
with each such report.
50
The
Seller shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to the
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Seller 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.
In
addition, not more than sixty (60) days after the end of each calendar
year, the
Seller shall furnish to each Person who was a Purchaser at any time during
such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for
the
applicable portion of such year.
Section
5.03. Monthly
Advances by the Seller.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Seller shall deposit in the Custodial Account an amount equal to all
Monthly
Payments, whether or not deferred pursuant to Section 4.01, which were
due on a
Mortgage Loan on the immediately preceding Due Date and delinquent at the
close
of business on the related Determination Date.
The
Seller’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the earlier of: (i) the date of the termination or resignation,
as applicable, of the Seller pursuant to Section 7.04, 8.01 or 9.01 or
(ii) the
date of final disposition and liquidation of the related Mortgage Loan
or any
Mortgaged Property acquired through foreclosure or a conveyance in lieu
of
foreclosure, unless the Seller reasonably believes such advance to be
non-recoverable from proceeds of the related Mortgage Loan. In such event,
the
Seller shall deliver to the Purchaser an Officer’s Certificate of the Seller to
the effect that an officer of the Seller has reviewed the related Servicing
File
and has made the reasonable determination that any additional advances
are
non-recoverable from proceeds of the related Mortgage Loan.
Section
5.04. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
The
Seller shall also provide reports on the status of REO Property containing
such
information as the Purchaser may reasonably require.
ARTICLE
VI
Section
6.01. Assumption
Agreements.
The
Seller shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided,
however,
that
the Seller shall not exercise any such rights if prohibited by law or the
terms
of the Mortgage Note from doing so or if the exercise of such rights would
impair or threaten to impair any recovery under the related Primary Mortgage
Insurance Policy, if any. If the Seller reasonably believes it is unable
under
applicable law to enforce such “due-on-sale” clause, the Seller will enter into
an assumption agreement with the person to whom the Mortgaged Property
has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. If the Seller is prohibited
under
applicable law from (a) entering into an assumption agreement with the
Person to
whom the Mortgaged Property has been conveyed or is proposed to be conveyed
or
(b) requiring the original Mortgagor to remain liable under the Mortgage
Note,
the Seller, with the prior consent of the primary mortgage insurer, if
any, is
authorized to enter into a substitution of liability agreement with the
person
to whom the Mortgaged Property has been conveyed or is proposed to be conveyed
pursuant to which the original Mortgagor is released from liability and
such
Person is substituted as mortgagor and becomes liable under the related
Mortgage
Note. Any such substitution of liability agreement shall be in lieu of
an
assumption agreement.
51
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of the Xxxxxx Xxx
Guides.
With respect to an assumption or substitution of liability, the Mortgage
Interest Rate borne by the related Mortgage Note and the amount of the
Monthly
Payment may not be changed. If the credit of the proposed transferee does
not
meet such underwriting criteria, the Seller diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan. The Seller shall notify the Purchaser
that
any such substitution of liability or assumption agreement has been completed
by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage
File to
the same extent as all other documents and instruments constituting a part
thereof. All fees collected by the Seller for entering into an assumption
or
substitution of liability agreement shall belong to the Seller as additional
servicing compensation.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any
other
violation of its obligations hereunder by reason of any assumption of a
Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
6.01, the term “assumption” is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption
or
substitution of liability agreement.
Section
6.02. Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Seller will immediately notify the Purchaser by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment
which are
required to be deposited in the Custodial Account pursuant to Section 4.04
have
been or will be so deposited, of a Servicing Officer and shall request
delivery
to it of the portion of the Mortgage File held by the Purchaser. The Purchaser
shall no later than five (5) Business Days after receipt of such certification
and request, release or cause to be released to the Seller, the related
Mortgage
Loan Documents and, upon its receipt of such documents, the Seller shall
promptly prepare and deliver to the Purchaser the requisite satisfaction
or
release. No later than three (3) Business Days following its receipt of
such
satisfaction or release, the Purchaser shall deliver, or cause to be delivered,
to the Seller the release or satisfaction properly executed by the owner
of
record of the applicable Mortgage or its duly appointed attorney in fact.
If
such Mortgage Loan is a MERS Mortgage Loan, the Seller is authorized to
cause
the removal from the registration on the MERS System of such Mortgage and
to
execute and deliver, on behalf of the Purchaser, any and all instruments
of
satisfaction or cancellation or of partial or full release.
52
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the Mortgage
Loan
Documents, the Seller, upon written demand, shall remit within two (2)
Business
Days to the Purchaser the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser shall, upon request of the Seller and delivery
to the Purchaser of a servicing receipt signed by a Servicing Officer,
release
the portion of the Mortgage File held by the Purchaser to the Seller. Such
servicing receipt shall obligate the Seller to return such Mortgage Loan
Documents to the Purchaser when the need therefor by the Seller no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or the Mortgage File has been delivered to an attorney, or to a
public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Seller
has
delivered to the Purchaser a certificate of a Servicing Officer certifying
as to
the name and address of the Person to which such Mortgage File was delivered
and
the purpose or purposes of such delivery. Upon receipt of a certificate
of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Seller.
Section
6.03. Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall be entitled to
the
Servicing Fee. Additional servicing compensation in the form of assumption
fees,
as provided in Section 6.01, late payment charges, interest and investment
earning on funds on deposit in the Custodial Account and Escrow Account
(to the
extent provided for herein) and other ancillary income shall be retained
by the
Seller to the extent not required to be deposited in the Custodial Account.
The
Seller shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
Section
6.04. Annual
Statement as to Compliance.
53
On
or
prior to March 15th of each year for each year in which the Purchaser or
an
Affiliate of the Purchaser is required to file an annual report on Form
10-K in
connection with any Securitization Transfer with the United States Securities
and Exchange Commission (the “SEC”),
and
upon request of the Purchaser for any other year, the Seller will deliver
to the
Purchaser an Officers’ Certificate stating, as to each signatory thereof, that
(i) a review of the activities of the Seller during the preceding calendar
year
and of performance under this Agreement has been made under such officers’
supervision, and (ii) to the best of such officers’ knowledge, based on such
review, the Seller has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment
of any
such obligation, specifying each such default known to such officers and
the
nature and status thereof. The first Officer’s Certificate delivered by the
Seller to the Purchaser pursuant to this Section shall be delivered on
or before
March 15, 2005, or such other date as may be required pursuant to the first
sentence of this Section 6.04. Copies of such statement shall be provided
by the
Seller to the Purchaser upon request. The obligations of the Seller under
this
Section 6.04 apply to the Seller for any year in which the Seller during
the
prior calendar year (or any portion thereof) serviced a Mortgage Loan pursuant
to this Agreement, whether or not the Seller is acting as the servicer
at the
time such statement is required to be delivered.
On
or
prior to March 15th of each year for each year in which the Purchaser or
an
Affiliate of the Purchaser is required to file an annual report on Form
10-K in
connection with any Securitization Transfer with the SEC, and upon request
of
the Purchaser for any other year, the Seller 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
Seller’s servicing of residential mortgage loans, and that, on the basis of such
an examination, conducted substantially in compliance with the Uniform
Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
the
Seller’s servicing has been conducted in compliance with such programs, 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. The first
statement delivered by the Seller to the Purchaser pursuant to this Section
shall be delivered on or before March 15, 2005, or such other date as may
be
required pursuant to the first sentence of this Section 6.05. Copies of
such
statement shall be provided by the Seller to the Purchaser. The obligations
of
the Seller under this Section 6.05 apply to the Seller for any year in
which the
Seller during the prior calendar year (or any portion thereof) serviced
a
Mortgage Loan pursuant to this Agreement, whether or not the Seller is
acting as
the servicer at the time such statement is required to be delivered
Section
6.06. Purchaser’s
Right to Examine Seller Records.
At
its
expense, the Purchaser shall have the right to examine and audit upon reasonable
notice to the Seller, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Seller, or held by another for
the
Seller or on its behalf or otherwise, which relates to the performance
or
observance by the Seller of the terms, covenants or conditions of this
Agreement.
54
The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction
over the
Purchaser, including but not limited to, OCC, OTS, FDIC and other similar
entities, access to any documentation regarding the Mortgage Loans in the
possession of the Seller which may be required by any applicable regulations.
Such access shall be afforded without charge, upon reasonable request,
during
normal business hours and at the offices of the Seller, and in accordance
with
the federal government, OCC, FDIC, OTS, or any other similar regulations;
provided, however, that in connection with providing such access, the Seller
shall not be required to incur any out-of-pocket costs unless provisions
have
been made for the reimbursement thereof.
Section
6.07. Seller
Shall Provide Information as Reasonably Required.
The
Seller shall furnish to the Purchaser during the term of this Agreement
such
periodic, special or other reports, information or documentation as the
Purchaser may reasonably request, as shall be necessary, reasonable or
appropriate in respect to the Mortgage Loans and the performance of the
Seller
under this Agreement, including any reports, information or documentation
reasonably required to comply with any regulations regarding any supervisory
agents or examiners of the Purchaser; provided, that, the Seller shall
not be
liable for any out-of-pocket costs with respect to the provision of such
reports, information or documentation. All such reports or information
shall be
provided by and in accordance with such applicable instructions and directions
as the Purchaser may reasonably request in relation to this Agreement or
the
performance of the Seller under this Agreement. The Seller agrees to execute
and
deliver all such instruments and take all such action as the Purchaser,
from
time to time, may reasonably request in order to effectuate the purpose
and to
carry out the terms of this Agreement.
The
Seller, upon reasonable advance notice, shall make reasonably available
to the
Purchaser or any prospective purchaser a knowledgeable financial or accounting
officer for the purpose of answering questions and to permit any prospective
purchaser to inspect the Seller’s servicing facilities for the purpose of
satisfying such prospective purchaser that the Seller has the ability to
service
the Mortgage Loans as provided in this Agreement.
The
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan
and
thereafter in accordance with applicable laws and regulations.
ARTICLE
VII
Section
7.01. Indemnification;
Third Party Claims.
The
Seller agrees to indemnify and hold the Purchaser and its present and former
directors, officers, employees and agents harmless from any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and related
costs,
judgments, and any other costs, fees and expenses that any of such parties
may
sustain in any way related to the failure of the Seller to observe and
perform
its duties, obligations, covenants, and agreements and to service the Mortgage
Loans in compliance with the terms of this Agreement or as a result of
the
breach of a representation or warranty set forth in Sections 3.01 or 3.02
of
this Agreement. The Seller hereunder shall immediately notify the Purchaser
if a
claim is made by a third party with respect to this Agreement or a Mortgage
Loan, assume (with the consent of the Purchaser) the defense of any such
claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered
against it or the Purchaser in respect of such claim. The Seller shall
follow
any written instructions received from the Purchaser in connection with
such
claim. The Purchaser shall promptly reimburse the Seller for all amounts
advanced by it pursuant to the two preceding sentences except when the
claim
relates to the failure of the Seller to service and administer the Mortgage
Loans in compliance with the terms of this Agreement, the failure of the
Seller
to perform its duties and obligations pursuant to this Agreement, the breach
of
representation or warranty set forth in Sections 3.01 or 3.02, or the gross
negligence, bad faith or willful misconduct of the Seller. The provisions
of
this Section 7.01 shall survive termination of this Agreement and transfer
of
the related servicing rights.
55
Section
7.02. Merger
or Consolidation of the Seller.
The
Seller shall keep in full effect its existence, rights and franchises as
a
corporation under the laws of the state of its incorporation except as
permitted
herein, and shall obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is
or shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated (including by
means
of sale or disposal of all or substantially all of the Seller’s assets), or any
corporation resulting from any merger, conversion or consolidation to which
the
Seller shall be a party, or any Person succeeding to the business of the
Seller,
shall be the successor of the Seller hereunder, without the execution or
filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that
the
successor or surviving Person shall be an institution whose deposits are
insured
by FDIC or a company whose business is the origination and servicing of
mortgage
loans, unless otherwise consented to by the Purchaser, which consent shall
not
be unreasonably withheld, and shall be qualified and in good standing to
service
mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
Section
7.03. Limitation
on Liability of the Seller and Others.
The
duties and obligations of the Seller shall be determined solely by the
express
provisions of this Agreement, the Seller shall not be liable except for
the
performance of such duties and obligations as are specifically set forth
in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Seller. Neither the Seller nor any of the officers,
employees or agents of the Seller shall be under any liability to the Purchaser
for any action taken or for refraining from the taking of any action in
good
faith pursuant to this Agreement, or for errors in judgment made in good
faith;
provided,
however,
that
this provision shall not protect the Seller or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of negligence,
bad
faith or willful misconduct, or any breach of the terms and conditions
of this
Agreement. The Seller and any officer, employee or agent of the Seller
may rely
in good faith on any document of any kind prima facie properly executed
and
submitted by the Purchaser respecting any matters arising hereunder. The
Seller
shall not be under any obligation to appear in, prosecute or defend any
legal
action which is not incidental to its duties to service the Mortgage Loans
in
accordance with this Agreement and which in its reasonable opinion may
involve
it in any expenses or liability.
56
Section
7.04. Seller
Not to Resign.
The
Seller shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No
such
resignation shall become effective until a successor shall have assumed
the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 11.01.
Section
7.05. No
Transfer of Servicing.
With
respect to the retention of the Seller to service the Mortgage Loans hereunder,
the Seller acknowledges that the Purchaser has acted in reliance upon the
Seller’s independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section 7.05, the Seller shall not either assign this Agreement
or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof without the prior written approval of the Purchaser, which consent
may
be withheld in the Purchaser’s discretion exercised in good faith.
Notwithstanding the foregoing, the Seller may, without the consent of the
Purchaser, retain reasonable and necessary third party contractors to perform
certain servicing and loan administration functions, including and limited
to,
hazard insurance administration, tax payment and administration, flood
certification and administration and foreclosure activities; provided,
that such
contractors shall perform such servicing and loan administrative functions
in a
manner consistent with this Agreement; provided, further, that the retention
of
such contractors by Seller shall not limit the obligation of the Seller
to
service the Mortgage Loans pursuant to the terms and conditions of this
Agreement or release it from any of its obligations hereunder.
ARTICLE
VIII
Section
8.01. Events
of Default.
57
In
case
one or more of the following Events of Default by the Seller shall occur
and be
continuing, that is to say:
(i) any
failure by the Seller to remit to the Purchaser any payment required to
be made
under the terms of this Agreement which continues unremedied for a period
of two
(2) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller
by the
Purchaser; or
(ii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth
in this
Agreement, or which failure continues unremedied for a period of thirty
(30)
days after the date on which written notice of such failure, requiring
the same
to be remedied, shall have been given to the Seller by the Purchaser;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
(iv) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(v) the
Seller shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) the
Seller ceases to be approved by Xxxxxx Xxx or Xxxxxxx Mac as a mortgage
loan
seller and servicer for more than thirty (30) days; or
(vii) the
Seller attempts to assign its right to servicing compensation hereunder
or the
Seller attempts, without the consent of the Purchaser, to assign this Agreement
or the servicing responsibilities hereunder or to delegate its duties hereunder
or any portion thereof in a manner not permitted under this Agreement;
or
(viii) the
Seller ceases to be (a) licensed to service first lien residential mortgage
loans in each jurisdiction in which a Mortgaged Property is located and
such
licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent
such
non-qualification materially and adversely affects the Seller’s ability to
perform its obligations hereunder;
58
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have under Sections 3.03 and 7.01 and
at law
or equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Seller under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof without compensating
the
Seller for the same. On or after the receipt by the Seller of such written
notice of termination, all authority and power of the Seller under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass
to and be vested in the successor appointed pursuant to Section 12.01.
Upon
written request from the Purchaser, the Seller shall prepare, execute and
deliver, any and all documents and other instruments, place in such successor’s
possession all Servicing Files, and do or accomplish all other acts or
things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise, at the Seller’s sole expense. The
Seller agrees to cooperate with the Purchaser and such successor in effecting
the termination of the Seller’s responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Seller
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans or any REO Property.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 8.04) of the Seller hereunder,
either
(i) the successor servicer shall represent and warrant that it is a member
of
MERS in good standing and shall agree to comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, or (ii) the Seller shall
cooperate
with the successor servicer either (x) in causing MERS to execute and deliver
an
assignment of Mortgage in recordable form to transfer the Mortgage from
MERS to
the Purchaser and to execute and deliver such other notices, documents
and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor servicer or (y) in causing MERS to designate on the MERS® System the
successor servicer as the servicer of such Mortgage Loan.
Section
8.02. Waiver
of Defaults.
The
Purchaser may waive only by written notice any default by the Seller in
the
performance of its obligations hereunder and its consequences. Upon any
such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
IX
Section
9.01. Termination.
59
The
respective obligations and responsibilities of the Seller, as servicer,
shall
terminate upon (a) the distribution to the Purchaser of the final payment
or liquidation with respect to the last Mortgage Loan (or advances of same
by
the Seller); (b) the disposition of all property acquired upon foreclosure
or deed in lieu of foreclosure with respect to the last Mortgage Loan and
the
remittance of all funds due hereunder or (c) by mutual consent of the Seller
and
the Purchaser in writing. Upon written request from the Purchaser in connection
with any such termination, the Seller shall prepare, execute and deliver,
any
and all documents and other instruments, place in the Purchaser’s possession all
Mortgage Files, and do or accomplish all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents, or otherwise, at the Purchaser’s sole expense. The Seller
agrees to cooperate with the Purchaser and such successor in effecting
the
termination of the Seller’s responsibilities and rights hereunder as servicer,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Seller
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
Notwithstanding
and in addition to the foregoing, in the event that a Mortgage Loan (i)
becomes
delinquent for a period of ninety (90) days or more (a “Delinquent Mortgage
Loan”) or (ii) becomes an REO Property, the Purchaser may, at its option,
terminate this Agreement with respect to such Delinquent Mortgage Loan
or REO
Property upon twenty (20) days’ written notice to the Seller; provided that upon
termination of this Agreement with respect to such Delinquent Mortgage
Loan or
REO Property the Purchaser shall reimburse the Seller for all outstanding
Servicing Advances or Servicing Fees related to such Delinquent Mortgage
Loan.
ARTICLE
X
Section
10.01. Reconstitution
of Mortgage Loans.
The
Seller and the Purchaser agree that with respect to some or all of the
Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution
Date”)
at the
Purchaser’s sole option, the Purchaser may effect a sale (each, a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
(i) Xxxxxx
Mae under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “Xxxxxx
Xxx Transfer”);
or
(ii) Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
(iii) one
or
more third party purchasers in one or more Whole Loan Transfers; or
(iv) one
or
more trusts or other entities to be formed as part of one or more Securitization
Transfers.
The
Purchaser shall use its best efforts to provide notice to the Seller of
each
such Reconstitution no later than fifteen (15) calendar days prior to the
related Reconstitution Date, but, in any event, shall provide such notice
to the
Seller no later than ten (10) calendar days prior to the related Reconstitution
Date.
60
The
Seller agrees to execute in connection with any Agency Transfer, any and
all
reasonably acceptable pool purchase contracts, and/or agreements among
the
Purchaser, the Seller, Xxxxxx Mae or Xxxxxxx Mac (as the case may be) and
any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form
and
substance reasonably acceptable to the parties, and in connection with
a
Securitization Transfer, a pooling and servicing agreement in form and
substance
reasonably acceptable to the parties or an Assignment and Recognition Agreement
substantially in the form attached hereto as Exhibit
D
(collectively, the agreements referred to herein are designated, the
“Reconstitution
Agreements”),
together with an opinion of counsel with respect to such Reconstitution
Agreements.
With
respect to each Whole Loan Transfer and each Securitization Transfer entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable
requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to restate the
representations and warranties set forth in Section 3.01 of this Agreement
as of
the related Reconstitution Date, to restate the representations and warranties
set forth in Section 3.02 of this Agreement as of the related Closing Date
and
to represent and warrant that the Seller has serviced the Mortgage Loans
in
accordance with this Agreement, in each case, as of the settlement or closing
date in connection with such Reconstitution. The Seller shall provide to
such
servicer or issuer, as the case may be, and any other participants or purchasers
in such Reconstitution: (i) any and all information and appropriate
verification of information which may be reasonably available to the Seller
or
its Affiliates, whether through letters of its auditors and counsel or
otherwise, as the Purchaser or any such other participant shall reasonably
request; (ii) such additional opinions of counsel, letters from auditors,
and certificates of public officials or officers of the Seller as are reasonably
believed necessary by the Purchaser or any such other participant; and
(iii) to execute, deliver and satisfy all conditions set forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution Agreement
in
substantially the form attached hereto as Exhibit
I.
Moreover, the Seller agrees to cooperate with all reasonable requests made
by
the Purchaser to effect such Reconstitution. The Seller shall indemnify
the
Purchaser, each Affiliate of the Purchaser participating in the Reconstitution
and each Person who controls the Purchaser or such Affiliate and their
respective present and former directors, officers, employees and agents,
and
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments,
and
any other costs, fees and expenses that each of them may sustain in any
way
related to any information provided by or on behalf of the Seller regarding
the
Seller or any affiliated servicer, the Seller’s or any affiliated servicer’s
servicing practices or performance or the Underwriting Standards set forth
in
any offering document prepared in connection with any Reconstitution (the
“Seller
Information”).
For
purposes of the previous sentence, “Purchaser” shall mean the Person then acting
as the Purchaser under this Agreement and any and all Persons who previously
were “Purchasers” under this Agreement. In connection with any Reconstitution,
the Purchaser shall execute an Indemnification and Contribution Agreement
substantially in the form of Exhibit
I
attached
hereto, which in any case, shall provide that the Purchaser shall indemnify
the
Seller and each Person who controls the Seller and its directors, officers,
employees and agents, and hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and any other costs, fees and expenses that each
of
them may sustain in any way related to any information, other than (i)
the
Seller Information or (ii) any information regarding the Mortgage Loans
set
forth in any offering document prepared in connection with any Reconstitution
that is derived from loan-level information provided by the Seller to the
Purchaser, the related depositor or any of their Affiliates, set forth
in any
offering document prepared in connection with any Reconstitution.
61
With
respect to any Mortgage Loans sold in a Securitization Transfer where the
Seller
is the servicer, the Seller agrees that on or before March 15th of each
year
beginning March 15, 2005, the Seller shall deliver to the depositor, the
master
servicer (if any) and the trustee for the securitization trust in the
Securitization Transfer, and their officers and directors, a certification
in
the form attached as Exhibit
J
hereto,
executed by the senior officer in charge of servicing at the Seller for
use in
connection with any Form 10-K to be filed with the SEC with respect to
the
securitization trust. The Seller shall indemnify and hold harmless the
depositor, the master servicer (if any) and the trustee, and their respective
officers and directors, from and against any losses, damages, penalties,
fines,
forfeitures, legal fees and expenses and related costs, judgments and other
costs and expenses arising out of or based upon any breach of the Seller’s
obligations under this paragraph or any material misstatement or omission,
negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for in the preceding sentence
is
unavailable or insufficient to hold harmless any indemnified party, then
the
Seller agrees that it shall contribute to the amount paid or payable by
such
indemnified party as a result of the losses, claims, damages or liabilities
of
such indemnified party in such proportion as is appropriate to reflect
the
relative fault of such indemnified party, on the one hand, and the Seller,
on
the other, in connection with a breach of the Seller’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith
or
willful misconduct of the Seller in connection therewith.
The
Purchaser shall reimburse the Seller for any and all out-of-pocket expenses,
costs and fees, including reasonable attorney’s fees, incurred by the Seller in
response to requests for information or assistance under this Section,
other
than such out-of-pocket expenses, costs and fees, including reasonable
attorney’s fees, incurred by the Seller in connection with fulfilling its
obligations hereunder with respect to servicing and administering the related
Mortgage Loans. All Mortgage Loans not sold or transferred pursuant to
a
Reconstitution shall remain subject to this Agreement and shall continue
to be
serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
ARTICLE
XI
Section
11.01. Successor
to the Seller.
Prior
to
termination of Seller’s responsibilities and duties under this Agreement
pursuant to Section 7.04, 8.01 or 9.01, the Purchaser shall (i) succeed
to and
assume all of the Seller’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 7.02 hereof and which shall succeed to all rights and
assume
all of the responsibilities, duties and liabilities of the Seller under
this
Agreement. In connection with such appointment and assumption, the Purchaser
may
make such arrangements for the compensation of such successor out of payments
on
Mortgage Loans as the Purchaser and such successor shall agree. In the
event
that the Seller’s duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned Sections, the Seller
shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof
with the
same degree of diligence and prudence which it is obligated to exercise
under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or
removal of the Seller pursuant to the aforementioned Sections shall not
become
effective until a successor shall be appointed pursuant to this Section
and
shall in no event relieve the Seller of the representations and warranties
made
pursuant to Sections 3.01 and 3.02, the remedies available under Section
3.03 or
the indemnification obligations of the Seller pursuant to Section
7.01.
62
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights,
powers,
duties, responsibilities, obligations and liabilities of the Seller, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Seller or this Agreement pursuant to Section 7.04, 7.05,
8.01
or 9.01 shall not affect any claims that the Purchaser may have against
the
Seller arising prior to any such termination or resignation.
The
Seller shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Seller. Upon appointment of successor servicer to the
Seller,
the Seller shall be reimbursed for unrecovered Servicing Advances, Monthly
Advances and unpaid Servicing Fees which would otherwise have been recovered
by
the Seller pursuant to this Agreement but for the appointment such successor
servicer.
Upon
a
successor’s acceptance of appointment as such, the Seller shall notify by mail
the Purchaser of such appointment.
Section
11.02. Amendment.
This
Agreement may be amended or supplemented from time to time by written agreement
executed by the Purchaser and the Seller.
Section
11.03. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the Mortgaged Properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Seller
at
the Seller’s expense on direction of the Purchaser.
63
Section
11.04. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without regard to its conflict of law provisions, except
to
the extent preempted by Federal law. The obligations, rights and remedies
of the
parties hereunder shall be determined in accordance with such laws.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return
receipt
requested or certified mail, return receipt requested, or transmitted by
telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
1.
if
to the
Seller:
Wachovia
Mortgage Corporation
000
Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxx
Facsimile:
(000) 000-0000
with
a
copy to:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxx Xxxxxx
Facsimile:
(000) 000-0000
2.
if
to the
Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx - Servicing Oversight
64
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax:
000-000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or
such
other address as may hereafter be furnished to the other party by like
notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date
noted on
the return receipt).
Section
11.06. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which
prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of
this
Agreement without regard to such invalidity.
Section
11.07. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
65
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(iii) references
herein to “Articles,” “Sections,” Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder,” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(vi) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(vii) headings
of the Articles and Sections in this Agreement are for reference purposes
only
and shall not be deemed to have any substantive effect.
Section
11.09. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10. Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become
privy to
non-public information regarding the financial condition, operations and
prospects of the other party. Each of the Purchaser and the Seller shall
employ
proper procedures and standards designed to maintain the confidential nature
of
such information and the terms of this Agreement, except to the extent:
(a) disclosure of such information and terms is reasonably believed
by
such
party to be required in connection with regulatory requirements or other
legal
requirements relating to its affairs; (b) disclosed to any one or more of
such party’s employees, officers, directors, agents, attorneys or accountants
who would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person’s duties for
such party, to the extent such party has procedures in effect to inform
such
Person of the confidential nature thereof; (c) disclosed in a prospectus,
prospectus supplement or private placement memorandum relating to a
securitization of the Mortgage Loans by the Purchaser (or an Affiliate
assignee
thereof) or to any Person in connection with the resale or proposed resale
of
all or a portion of the Mortgage Loans by such party in accordance with
the
terms of this Agreement; and (d) that is reasonably believed by such party
to be necessary for the enforcement of such party’s rights under this
Agreement.
66
Section
11.11. Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage
is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which
any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected (i)
with
respect to MERS Mortgage Loans, at the Purchaser’s expense and (ii) with respect
to Mortgage Loans that are not MERS Mortgage Loans, at the Seller’s expense, in
each case, in the event recordation is either necessary under applicable
law or
requested by the Purchaser at its sole option.
Section
11.12. Assignment
by Purchaser.
The
Purchaser shall have the right, upon notice to the Seller, to assign, in
whole
or in part, its interest under this Agreement with respect to some or all
of the
Mortgage Loans, and designate any person to exercise any rights of the
Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit
D
hereto,
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans; provided,
however, that, in no event shall there be any more than three (3) “Purchasers”
with respect to any Mortgage Loan Package. In no event shall the Purchaser
sell
a partial interest in any Mortgage Loan without the prior written consent
of the
Seller, which consent may be granted or withheld in the Seller’s sole
discretion. All references to the Purchaser in this Agreement shall be
deemed to
include its assignee or designee.
Section
11.13. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Seller
shall be
rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14. Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 7.02, this Agreement shall inure
to
the benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns.
67
Section
11.15. Entire
Agreement.
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or
any of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement and the related Purchase
Price and
Terms Letter set forth the entire understanding between the parties hereto
and
shall be binding upon all successors of all of the parties. In the event
of any
inconsistency between a Purchase Price and Terms Letter and this Agreement,
this
Agreement shall control.
Section
11.16. No
Solicitation.
From
and
after the related Closing Date, except as provided below, the Seller agrees
that
it will not take any action or permit or cause any action to be taken by
any of
its agents or Affiliates, or by any independent contractors on the Seller’s
behalf, in any manner to solicit the borrower or obligor under any Mortgage
Loan
to refinance the Mortgage Loan, in whole or in part, without the prior
written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the
list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on
the
related Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and
agreed
that the following promotions or solicitations undertaken by the Seller
or any
Affiliate of the Seller shall not be prohibited under this Section 11.16:
(i)
promotions or solicitations that are directed to the general public at
large or
segments thereof, provided that no segment shall consist primarily of the
borrowers or obligors under the Mortgage Loans, including, without limitation,
mass mailing based on commercially acquired mailing lists, newspaper, radio
and
television advertisements; (ii) responding to Mortgagor requests for pay-off
information and regarding other bank or financial products or services;
and
(iii) promotions or solicitations to any Mortgagor for any other bank or
financial products or services, unless such promotions or solicitations
are for
a prepayment of a Mortgage Loan.
Section
11.17. Costs.
The
Purchaser shall pay any commissions due its salesmen, the expenses of its
accountants and attorneys and the expenses and fees of any broker retained
by
the Purchaser with respect to the transactions covered by this Agreement.
To the
extent not otherwise provided herein, all other costs and expenses incurred
in
connection with the transfer and delivery of the Mortgage Loans, including,
without limitation, fees for recording intervening assignments of mortgage
and
Assignments of Mortgage, the cost of obtaining tax service contracts and
the
legal fees and expenses of its attorneys shall be paid by the Seller. The
Seller
shall be responsible for causing the recordation of all Assignments of
Mortgage
and all intervening assignments of mortgage, as applicable.
68
Section
11.18. Protection
of Mortgagor Personal Information.
Each
of
the Purchaser and the Seller agree that it (i) shall comply with any applicable
laws and regulations regarding the privacy and security of Mortgagor Personal
Information, (ii) shall not use Mortgagor Personal Information in any manner
inconsistent with any applicable laws and regulations regarding the privacy
and
security of Mortgagor Personal Information, (iii) shall not disclose Mortgagor
Personal Information to third parties except at the specific written direction
of the other; provided,
however,
that the
Purchaser and the Seller may disclose Mortgagor Personal Information to
third
parties in connection with secondary market transactions to the extent
not
prohibited by applicable law or to the extent required by a valid and effective
subpoena issued by a court of competent jurisdiction or other governmental
body,
(iv) shall maintain adequate physical, technical and administrative safeguards
to protect Mortgagor Personal Information from unauthorized access and
(v) shall immediately notify the other of any actual or suspected breach of
the confidentiality of Mortgagor Personal Information.
[SIGNATURE
PAGE TO FOLLOW]
69
|
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
as
Purchaser
|
||
| By:_________________________ | ||
| Name:_______________________ | ||
| Title:________________________ | ||
| WACHOVIA
MORTGAGE CORPORATION,
as
Seller
|
||
| By:_________________________ | ||
| Name: Xxxxxxxx X. Xxxxx | ||
| Title: Vice President |
[Signature
Page to First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement, dated as of June 1, 2006]
70
Exhibit
A-1
Contents
of Mortgage File
With
respect to each Mortgage Loan, the Mortgage File shall include each of
the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered
to the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the First
Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of ___________________ without
recourse,” and signed in the name of the Seller by an authorized officer, with
all intervening endorsements showing a complete chain of title from the
originator to the Seller. If the Mortgage Loan was acquired by the Seller
in a
merger, the endorsement must be by “[Seller], successor by merger to the [name
of predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the endorsement must be by “[Seller]
formerly known as [previous name]”. If the original note is unavailable, seller
will provide an affidavit of lost note (in form acceptable to the Purchaser)
stating that the original Mortgage Note was lost or destroyed, together
with a
copy of such Mortgage Note and indemnifying the Purchaser against any and
all
claims arising as a result of any person or entity claiming they are the
holder
of the note or that the note has been paid off and returned.
2. A
true
certified copy, certified by the [title insurer], of the applicable First
Lien.
3. Except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the [title
insurer], of the original Mortgage together with a certificate of the Seller
certifying that the original Mortgage has been delivered for recording
in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN of the Mortgage Loans and either
language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon, or a copy
of the
Mortgage certified by the public recording office in which such Mortgage
has
been recorded.
4. The
original or certified to be a true copy or if in electronic form identified
on
the Mortgage Loan Schedule, the certificate number, certified by the Seller,
of
the related Primary Mortgage Insurance Policy, if required.
5. In
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment, from the Seller in accordance with Purchaser’s instructions, which
assignment shall, but for any blanks requested by the Purchaser, be in
form and
substance acceptable for recording, or a copy certified by the Seller as
a true
and correct copy of the original Assignment which has been sent for recordation.
If the Mortgage Loan was acquired or originated by the Seller while doing
business under another name, the Assignment must be by “[Seller] formerly known
as [previous name]”.
A-1-1
6. With
respect to Mortgage Loans that are not Co-op Loans, the original policy
of title
insurance, including riders and endorsements thereto, or if the policy
has not
yet been issued, a written commitment or interim binder or preliminary
report of
title issued by the title insurance or escrow company.
7. Originals
of all recorded intervening Assignments, or copies thereof, certified by
the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence
of
recording thereon, or a copy thereof certified by the public recording
office in
which such Assignment has been recorded or, if the original Assignment
has not
been returned from the applicable public recording office, a true certified
copy, certified by the [title insurer] of the original Assignment together
with
a certificate of the [title insurer] certifying that the original Assignment
has
been delivered for recording in the appropriate public recording office
of the
jurisdiction in which the Mortgaged Property is located.
8. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the
original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the [title insurer], of such
original document together with certificate of Seller certifying the original
of
such document has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is
located.
9. If
the
Mortgage Note or Mortgage or any other material document or instrument
relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property
is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and
that such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office
of the
jurisdiction in which the Mortgaged Property is located.
10. With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of
such Co-op Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment thereof
by
Seller; (ii) the stock certificate together with an undated stock power
relating
to such stock certificate executed in blank; (iii) the recognition agreement
in
substantially the same form as standard a “AZTECH” form; (iv) copies of the
financial statement filed by the originator as secured party and, if applicable,
a filed UCC-3 Assignment of the subject security interest showing a complete
chain of title, together with an executed UCC-3 Assignment of such security
interest by the Seller in a form sufficient for filing.
A-1-2
11. The
original of any guarantee executed in connection with the Mortgage
Note.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate
for all
of the Mortgage Loans indicating that the documents were delivered for
recording.
X-0-0
Xxxxxxx
X-0
Contents
of Servicing File
With
respect to each Mortgage Loan, the Servicing File shall include each of
the
following items, which shall be available for inspection by the
Purchaser:
1. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
2. Residential
loan application.
3. Uniform
underwriter and transmittal summary (Xxxxxx Xxx Form 1008) or reasonable
equivalent.
4. Credit
report on the mortgagor.
5. Business
credit report, if applicable.
6. Residential
appraisal report and attachments thereto.
7. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Seller’s Underwriting
Standards.
8. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
the Underwriting Standards.
9. Photograph
of the Mortgaged Property (may be part of appraisal).
10. Survey
of
the Mortgaged Property, if any.
11. Sales
contract, if applicable.
12. If
available, termite report, structural engineer’s report, water portability and
septic certification.
13. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
14. Any
ground lease, including all amendments, modifications and supplements
thereto.
15. Any
other
document required to service the Mortgage Loans.
A-2-1
Exhibit
B
Form
of Custodial Account Letter Agreement
__________________
, 200_
To:
As
“Seller” under the First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006 (the “Agreement”), we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 4.04 of the Agreement, to be designated as “Wachovia
Mortgage Corporation, in trust for the Purchaser, owner of various whole
loan
series - principal and interest”. All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Seller. This letter is submitted
to you in duplicate. Please execute and return one original to us.
| WACHOVIA
MORTGAGE CORPORATION,
as
SELLER
|
||
| ________________________ | ||
| By:_________________________ | ||
| Name: _______________________ | ||
| Title: ________________________ |
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number ______________, at the office
of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
| ________________________ | ||
| By:_________________________ | ||
| Name: _______________________ | ||
| Title: ________________________ | ||
B-1
Exhibit
C
Form
of Escrow Account Letter Agreement
_____________________,
200_
To:
As
“Seller” under the First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006 (the “Agreement”), we hereby
authorize and request you to establish an account, as an Escrow Account
pursuant
to Section 4.06 of the Agreement, to be designated as “Wachovia Mortgage
Corporation, in trust for the Purchaser, owner of various whole loan series,
and
various Mortgagors.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
| WACHOVIA
MORTGAGE CORPORATION,
as
SELLER
|
||
| ________________________ | ||
| By:_________________________ | ||
| Name: _______________________ | ||
| Title: ________________________ |
The
undersigned, as “Depository,” hereby certifies that the above described account
has been established under Account Number ______________, at the office
of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
| ________________________ | ||
| By:_________________________ | ||
| Name: _______________________ | ||
| Title: ________________________ | ||
C-1
Exhibit
D
Form
of Assignment, Assumption and Recognition Agreement
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of _________, between [Purchaser], a [_____________] corporation
(the
“Assignor”), ______________________, a ________ corporation (the “Assignee”),
and Wachovia Mortgage Corporation, a North Carolina corporation (the
“Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby
are
acknowledged, and of the premises and mutual covenants herein contained,
the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those
certain
mortgage loans listed on Exhibit A attached hereto (the “Mortgage Loans”); and
(b) the First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement dated as of June 1, 2006, but only to the extent of the Mortgage
Loans
(the “Purchase Agreement”). For purposes of this Assignment Agreement, the term
“Purchase Agreement” includes any separate Assignment and Conveyance pursuant to
which Seller and Assignor effectuated the purchase and sale of any Mortgage
Loan
following the execution and delivery of the First Amended and Restated
Seller’s
Purchase, Warranties and Servicing Agreement dated as of June 1,
2006.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on Exhibit A attached hereto
and are
not the subject of this Assignment Agreement.
2. Each
of
the Seller and the Assignor represent and warrant to the Assignee that
(a) the
copy of the Purchase Agreement, attached hereto as Exhibit B, provided
to the
Assignee, is a true, complete and accurate copy of the Purchase Agreement,
(b)
the Purchase Agreement is in full force and effect as of the date hereof,
(c)
the provisions thereof have not been waived, amended or modified in any
respect,
nor have any notices of termination been given thereunder, (d) the Purchase
Agreement contains all of the terms and conditions governing the sale of
the
Mortgage Loans by Seller to Assignor and the purchase of the Mortgage Loans
by
Assignor from Seller; provided,
however,
that
the date of purchase and sale and the amount of payment for the Mortgage
Loans
may be set out in a Purchase Price and Terms Letter, as defined in the
Purchase
Agreement, and (e) Seller sold, conveyed and transferred each Mortgage
Loan to
Assignor pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee and
the
Seller that:
(a) As
of the
date hereof, the Assignor is not in default under the Purchase
Agreement;
D-1
(b) The
Assignor is the lawful owner of the Mortgage Loans with the full right
to
transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase Agreement, free from any and all claims
and
encumbrances arising out of the Assignor’s ownership thereof, and the Mortgage
Loans, as well as the Purchase Agreement, upon the transfer thereof to
the
Assignee as contemplated herein, shall be free and clear of all such liens,
claims and encumbrances or any lien claim or encumbrance arising out of
the
ownership of the Mortgage Loans by any person at any time after Assignor
first
acquired any Mortgage Loan from the Seller;
(c) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to
the
Purchase Agreement or the Mortgage Loans;
(d) The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of,
any
waivers under or amendments or other modifications of, or assignments of
rights
or obligations under or defaults under, the Purchase Agreement, or the
Mortgage
Loans;
(e) The
Assignor is a corporation duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
(f) The
Assignor has full corporate power and authority to execute, deliver and
perform
under this Assignment Agreement, and to consummate the transactions set
forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party
or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated
hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms
except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or
in
law;
(g) No
material consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be obtained or
made by
the Assignor in connection with the execution, delivery or performance
by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(h) The
Assignor has paid the purchase price for the Mortgage Loans and has satisfied
any conditions to closing required of it under the terms of the Purchase
Agreement.
D-2
4. The
Assignee warrants and represents to, and covenants with, the Assignor and
the
Seller that:
(a) The
Assignee is a corporation duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The
Assignee has full corporate power and authority to execute, deliver and
perform
under this Assignment Agreement, and to consummate the transactions set
forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party
or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated
hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms
except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or
in
law;
(c) No
material consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be obtained or
made by
the Assignee in connection with the execution, delivery or performance
by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants
and
conditions of the Purchase Agreement and the Mortgage Loans, and from and
after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor and
the
Assignee that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its
formation, and has all requisite power and authority to service the Mortgage
Loans;
(b) The
Seller has full power and authority to execute, deliver and perform under
this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound,
or
result in the violation of any law, rule, regulation, order, judgment or
decree
to which the Seller or its property is subject. The execution, delivery
and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by
all
necessary corporate action of the Seller. This Assignment Agreement has
been
duly executed and delivered by the Seller and constitutes the valid and
legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited
by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law;
D-3
(d) No
material consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be obtained or
made by
the Seller in connection with the execution, delivery or performance by
the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
(e) As
of the
date hereof, the Seller is not in default under the Purchase Agreement;
and
(f) No
event
has occurred or has failed to occur, during the period commencing on date
on
which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth
in
Section 3.01 of the Purchase Agreement untrue if such representations and
warranties were made with respect to the Mortgage Loans effective as of
the date
hereof.
6. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance
from
and after the date hereof of the Assignor’s obligations with respect to the
Mortgage Loans.
7. Notice
Addresses.
(a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
________________
________________
________________
Attention:
________________
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
[_____________________________]
[_____________________________]
[_____________________________]
[_____________________________]
Attention:
_______________
D-4
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxx Xxxxxx
8. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of laws principles)
and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
9. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for
any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
10. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom
such
waiver or modification is sought to be enforced.
11. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans
and the
assignment of the Purchase Agreement by the Assignor.
12. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or
the
Assignor unless assigned by separate written instrument.
13. For
the
purpose for facilitating the execution of this Assignment Agreement as
herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall
be deemed to be an original, and such counterparts shall constitute and
be one
and the same instrument.
[signatures
on following page]
D-5
[_____________________________]
Assignor
By:
Name:
Title:
_______________________
Assignee
By:
Name:
Title:
Wachovia
Mortgage Corporation
Seller
By:
Name:
Title:
D-6
Exhibit
E
Form
of Assignment and Conveyance
On
this
____ day of ________, 200_, Wachovia Mortgage Corporation (“Wachovia”) as the
Seller under that certain First Amended and Restated Seller’s Purchase,
Warranties and Servicing Agreement, dated as of June 1, 2006 (the “Agreement”),
by and between Wachovia and Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
“Purchaser”) does hereby sell, transfer, assign, set over and convey to the
Purchaser under the Agreement, without recourse, but subject to the terms
of the
Agreement, all rights, title and interest of Wachovia (excluding the right
to
service the Mortgage Loans) in and to the Mortgage Loans listed on the
Mortgage
Loan Schedule attached hereto as Exhibit
A,
together with the Mortgage Files and all rights and obligations arising
under
the documents contained therein. Pursuant to Section 2.07 of the Agreement,
Wachovia has delivered to the Purchaser the documents for each Mortgage
Loan to
be purchased as set forth therein. The contents of each Servicing File
required
to be retained by Wachovia to service the Mortgage Loans pursuant to the
Agreement and thus not delivered to the Purchaser are and shall be held
in trust
by Wachovia, for the benefit of the Purchaser as the owner thereof. Wachovia’s
possession of any portion of the Servicing File is at the will of the Purchaser
for the sole purpose of facilitating servicing of the related Mortgage
Loan
pursuant to the Agreement, and such retention and possession by Wachovia
shall
be in a custodial capacity only. The ownership of each Mortgage Note, Mortgage,
and the contents of the Mortgage File and Servicing File is vested in the
Purchaser and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of
Wachovia
shall immediately vest in the Purchaser and shall be retained and maintained,
in
trust, by Wachovia at the will of the Purchaser in such custodial capacity
only.
With
respect to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto as Exhibit
A,
the
term Standard & Poor’s Glossary, as used in the Agreement, shall refer to
Version __ of the Standard & Poor’s LEVELS® Glossary.
E-1
Capitalized
terms used herein and not otherwise defined shall have the meanings set
forth in
the Agreement.
| WACHOVIA MORTGAGE CORPORATION, | ||
| ________________________ | ||
| By:_________________________ | ||
| Name: _______________________ | ||
| Title:_____________________ | ||
E-2
Exhibit
F
Request
for Release of Documents and Receipt
RE: Mortgage
Loan #___________________________________
BORROWER: __________________________________________________
PROPERTY:
__________________________________________________
Pursuant
to a First Amended and Restated Seller’s Purchase, Warranties and Servicing
Agreement (the “Agreement”) between the Seller and the Purchaser, the
undersigned hereby certifies that he or she is an officer of the Seller
requesting release of the documents for the reason specified below. The
undersigned further certifies that:
(Check
one of the items below)
|
_____
|
On
_________________, the above captioned mortgage loan was paid
in full or
the Seller has been notified that payment in full has been or
will be
escrowed. The Seller hereby certifies that all amounts with respect
to
this loan which are required under the Agreement have been or
will be
deposited in the Custodial Account as required.
|
|
_____
|
The
above captioned loan is being repurchased pursuant to the terms
of the
Agreement. The Seller hereby certifies that the repurchase price
has been
credited to the Custodial Account as required under the
Agreement.
|
|
_____
|
The
above captioned loan is being placed in foreclosure and the original
documents are required to proceed with the foreclosure action.
The Seller
hereby certifies that the documents will be returned to the Purchaser
in
the event of reinstatement.
|
|
_____
|
Other
(explain)
|
|
_______________________________________________________
_______________________________________________________
|
All
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Agreement.
F-1
Based
on
this certification and the indemnities provided for in the Agreement, please
release to the Seller all original mortgage documents in your possession
relating to this loan.
Dated:_________________ By:________________________________
Signature
___________________________________
Title
Send
documents to: _____________________________________________
_____________________________________________
_____________________________________________
Acknowledgment:
Purchaser
hereby acknowledges that all original documents previously released on
the above
captioned mortgage loan have been returned and received by the
Purchaser.
Dated:________________ By:________________________________
Signature
Title:____________________________
F-2
Exhibit
G
Form
of S-50Y Report
S5261-50Y
W A C H O V I A M O R T G A G E C O R P 01/30/04
PRIVATE
POOL DETAIL REPORT PAGE 1
------------------------------------------------------------------------------------------------------------------------------------
INVESTOR
:
CATEGORY
:
POOL
NO :
INV PERCT : 100.00
LAST
C/OFF: 12/31/03 ODD CLT/INV:( : ) ALPHA CODE: BANK
PIF
DAY
PIF PIF CRT RMT PASS TRK ADD PL IND POOL USE S50Y T62C LOAN DEF INT REM
LLOB
EXTOUT
RMT
YR INT
RATE ADJ CAL THRU BAL NEW TP LN ID RES SORT RECP ADV INT DAY DAY TOL NUM
X/X
X/X
XXX 00.00000 X XX 00.00000 X X CD Y PVT N L Y DET NO 0000 0649
------------------------------------------------------------------------------------------------------------------------------------
LOAN
NO
INT RATE S-FEE YIELD P&I CON BEG SCHED PRIN BAL SCHED PRIN SCH NET INT
BUYDOWN REMITTANCE
------------------------------------------------------------------------------------------------------------------------------------
INV
LOAN
NO DUE DT BEGIN PRIN BAL END PRIN BAL PRIN COLL INT COLL SER-FEE COLL
------------------------------------------------------------------------------------------------------------------------------------
0009411054
07.00000 01.000 06.00000 309.23 27,512.33 148.74 137.56 0.00 286.30
ARM
0011467613 02/01/04 27,512.41 27,512.41 0.00 0.00 0.00
ENDING
SCH
BALANCE 27,363.59
------------------------------------------------------------------------------------------------------------------------------------
0009411062
06.75000 00.438 06.31200 385.84 35,138.54 188.19 184.83 0.00 373.02
ARM
0000000000 03/01/04 35,138.54 34,950.35 188.19 197.65 12.83
ENDING
SCH
BALANCE 34,950.35
------------------------------------------------------------------------------------------------------------------------------------
0000000000
06.75000 00.438 06.31200 289.69 25,956.05 143.69 136.53 0.00 280.22
ARM
0011472637 03/01/04 26,098.93 25,812.36 286.57 292.81 19.00
ENDING
SCH
BALANCE 25,812.36
------------------------------------------------------------------------------------------------------------------------------------
0009411074
04.25000 01.000 03.25000 198.87 22,282.94 119.95 60.35 0.00 180.30
ARM
0011488168 03/01/04 22,282.92 22,162.97 119.95 78.92 18.57
ENDING
SCH
BALANCE 22,162.99
------------------------------------------------------------------------------------------------------------------------------------
0009411086
03.87500 00.750 03.12500 338.64 42,885.55 200.16 111.68 0.00 311.84
ARM
0012600673 02/01/04 43,085.10 42,837.71 247.39 139.13 26.93
01/01/04
CURTAILMENT 47.88 ADJ .15 INT-RATE .0387500 48.03
ENDING
SCH
BALANCE 42,637.36
------------------------------------------------------------------------------------------------------------------------------------
0000000000
04.00000 00.705 03.29501 299.47 37,919.73 173.07 104.12 0.00 277.19
ARM
0012600990 03/01/04 37,919.74 37,746.67 173.07 126.40 22.28
ENDING
SCH
BALANCE 37,746.66
------------------------------------------------------------------------------------------------------------------------------------
0009411090
04.00000 00.705 03.29501 791.38 100,312.27 457.01 275.44 0.00 732.45
ARM
0012601067 04/01/04 99,855.24 99,396.71 458.53 332.85 58.66
ENDING
SCH
BALANCE 99,855.26
------------------------------------------------------------------------------------------------------------------------------------
0009411103
06.75000 00.438 06.31200 260.77 22,710.32 133.02 119.46 0.00 252.48
ARM
0013159440 02/01/04 22,842.67 22,710.33 132.34 128.49 8.34
ENDING
SCH
BALANCE 22,577.30
------------------------------------------------------------------------------------------------------------------------------------
0009411108
06.00000 00.750 05.25000 183.38 10,418.30 131.29 45.58 0.00 176.87
ARM
0013175371 02/01/04 10,548.94 10,418.30 130.64 52.74 6.59
ENDING
SCH
BALANCE 10,287.01
------------------------------------------------------------------------------------------------------------------------------------
X-0
Xxxxxxx
X
Xxxx
xx X-0XX Xxxxxx
X0000-0XX
W A C H O V I A M O R T G A G E C O R P 08/31/04
INVESTOR
LIST OF DELINQUENT ACCOUNTS BY INVESTOR LOAN NUMBER PAGE 3
------------------------------------------------------------------------------------------------------------------------------------
INVESTOR
NAME VARIOUS___ INTEREST RATE .0000000 SERVICE FEE .00000 STATE
INVESTOR
ADDRESS
XXXXXX,
XX
00000 INVESTOR N92 CATEGORY 001
------------------------------------------------------------------------------------------------------------------------------------
LOAN
NUMBER INV-CAT TP INV. LN # MORTG.-NAME DESC PRIN BALANCE DUE-DATE PMT
P&I
CONST. DELQ PRIN & INTEREST
*
COMMENTS
PROD CONTACT RESPONSE REASON DATE *
------------------------------------------------------------------------------------------------------------------------------------
0009911861
N92-001 13 4001683965 XXXXXXX 34,779.99 07-01-03 43 269.63 30.52
239.11
FC-
7:
CLAIM CHECK REC
VACANT
SECURED CONDITION ON 060704 LFCPI 00-00 00-00-00 44 30.73 238.90
VACANT
SECURED CONDITION ON 051804 LFCPI 00-00 00-00-00 45 30.94 238.69
Y
PAYOFF
QUOTE GOOD TO 06/07/2004 05-10 10-01-03 46 31.15 238.48
SCORE
792
042704 AGT RPRO DAYS DEL 301 04-27 11-01-03 47 31.37 238.26
VACANT
SECURED CONDITION ON 032004 LFCPI 00-00 00-00-00 48 31.58 238.05
01-01-04
49 31.80 237.83
02-01-04
50 32.02 237.61
03-01-04
51 32.24 237.39
04-01-04
52 32.46 237.17
05-01-04
53 32.68 236.95
06-01-04
54 32.91 236.72
07-01-04
55 33.13 236.50
08-01-04
56 33.36 236.27
LOAN
NO
TOTAL 3,774.82 446.89 3,327.93
0009911863
N92-001 13 4001683967 XXXX 64,816.84 11-01-01 26 495.54 49.92
445.62
SCORE
272
122303 AGT RPRO DAYS DEL 782 12-23 12-01-01 27 50.27 445.27
SCORE
287
082603 AGT RPRO DAYS DEL 663 08-26 01-01-02 28 50.61 444.93
Y
BLTR03 -
TRUST RECEIPT FNMA (2009) 00-00 00-00-00 29 50.96 444.58
SCORE
208
082802 AGT RPRO DAYS DEL 300 08-28 03-01-02 30 51.31 444.23
Y
ADV MTRG
TO DISREGARD BREACH LETTER SINCE DE 00-00 00-00-00 31 51.66 443.88
05-01-02
32 52.02 443.52
06-01-02
33 52.38 443.16
07-01-02
34 52.74 442.80
08-01-02
35 53.10 442.44
09-01-02
36 53.46 442.08
10-01-02
37 53.83 441.71
11-01-02
38 54.20 441.34
12-01-02
39 54.57 440.97
01-01-03
40 54.95 440.59
02-01-03
41 55.33 440.21
03-01-03
42 55.71 439.83
04-01-03
43 56.09 439.45
05-01-03
44 56.48 439.06
06-01-03
45 56.87 438.67
07-01-03
46 57.26 438.28
08-01-03
47 57.65 437.89
09-01-03
48 58.05 437.49
10-01-03
49 58.45 437.09
11-01-03
50 58.85 436.69
12-01-03
51 59.25 436.29
01-01-04
52 59.66 435.88
02-01-04
53 60.07 435.47
H-1
Exhibit
I
Form
of Indemnification and Contribution Agreement
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”),
dated
as of [DATE], among [DEPOSITOR] (the “Depositor”),
a
_______ corporation (the “Depositor”),
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation (“Xxxxxx”)
and
Wachovia Mortgage Corporation, a North Carolina corporation, as seller
and as
servicer (the “Seller”).
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [DATE], and the Prospectus Supplement to the Prospectus,
dated
[_____] (the “Prospectus
Supplement”)
and
the Term Sheet, dated [______], (the “Term
Sheet”)
relating to [________] (the “Certificates”)
to be
issued pursuant to a Pooling and Servicing Agreement, dated as of [DATE]
(the
“P&S”),
among
the Depositor, as depositor, [_________], as master servicer and securities
administrator (the “Servicer”),
and
[_______], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and [__________]
(the “Underwriter”)
to
enter into the Underwriting Agreement, dated [________] (the “Underwriting
Agreement”),
between the Depositor and the Underwriter, and [_____________] (the
“Initial
Purchaser”)
to
enter into the Certificate Purchase Agreement, dated [DATE] (the “Certificate
Purchase Agreement”),
between the Depositor and the Initial Purchaser, Seller has agreed to provide
for indemnification and contribution on the terms and conditions hereinafter
set
forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage
Loans”)
pursuant to a First Amended and Restated Seller’s Purchase, Warranties and
Servicing Agreement, dated as of June 1, 2006 (the “Sale
and Servicing Agreement”);
and
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter, the Initial Purchaser and their respective Affiliates and
their
respective present and former directors, officers, employees and agents
and each
person, if any, who controls the Depositor, Xxxxxx, the Underwriter, the
Initial
Purchaser or such Affiliates within the meaning of either Section 15 of
the
Securities Act of 1933, as amended (the “1933
Act”),
or
Section 20 of the Securities Exchange Act of 1934, as amended (the “1934
Act”),
against any and all losses, claims, damages or liabilities, to which they
or any
of them may become subject under the 1933 Act, the 1934 Act or other federal
or
state statutory law or regulation, at common law or otherwise, insofar
as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out
of or are based in whole or in part upon any material non-compliance with
the
requirements of Regulation AB Items 1108, 1110, 1111 (it being understood
that
no representation is made by Seller with respect to information regarding
the
mortgage loans as aggregated by the Depositor), 1117 or 1119, or arise
out of or
are based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement or
the Term
Sheet or any omission or alleged omission to state in the Prospectus Supplement
or the Term Sheet a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they
were
made, not misleading, or any such untrue statement or omission or alleged
untrue
statement or alleged omission made in any amendment of or supplement to
the
Prospectus Supplement or the Term Sheet (provided that Xxxxxx has provided
the
Seller with reasonable advanced notice of such amendment or supplement
and
Seller if afforded no fewer than five (5) Business Days to review and,
if
required, update, the Seller Information stated therein) and agrees to
reimburse
the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser or such Affiliates
and each such officer, director, employee, agent and controlling person
promptly
upon demand for any legal or other expenses reasonably incurred by any
of them
in connection with investigating or defending or preparing to defend against
any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such case only to
the
extent that any such loss, claim, damage, liability or action arises out
of, or
is based upon, any untrue statement or alleged untrue statement or omission
or
alleged omission set forth in or omitted from the Seller Information. The
foregoing indemnity agreement is in addition to any liability which Seller
may
otherwise have to the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser
their Affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, Xxxxxx, the Underwriter, the Initial Purchaser
or their
respective Affiliates.
I-1
(b) Xxxxxx
agrees to indemnify and hold harmless the Seller and its present and former
directors, officers, employees and agents and each person, if any, who
controls
the Seller within the meaning of either Section 15 of the 1933 Act, or
Section
20 of the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the 1933
Act, the 1934 Act or other federal or state statutory law or regulation,
at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based in whole or in
part
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus Supplement or the Term Sheet or any amendment
or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or
necessary to make the statements therein, in light of the circumstances
in which
they were made, not misleading, or any such untrue statement or omission
or
alleged untrue statement or alleged omission made in any amendment of or
supplement to the Prospectus Supplement or the Term Sheet, or arise out
of or
are based in whole or in part upon any material non-compliance with the
requirements of Regulation AB (17 CFR 229.1100 et seq.), and Xxxxxx shall
in
each case reimburse the Seller and each such officer, director, employee,
agent
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending
or preparing to defend against any such loss, claim, damage, liability
or action
as such expenses are incurred; provided,
however,
that
Xxxxxx shall be liable in any such case only to the extent that any such
loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue
statement or alleged untrue statement or omission or alleged omission set
forth
in or omitted from the information set forth in the Prospectus Supplement
or the
Term Sheet or any amendment of or supplement to either the Prospectus Supplement
or the Term Sheet other than (i) the Seller Information or (ii) any information
regarding the Mortgage Loans set forth in the Prospectus Supplement or
the Term
Sheet or any amendment of or supplement to either that is derived from
loan-level information provided by the Seller to the Purchaser, the Depositor
or
any of their Affiliates. The foregoing indemnity agreement is in addition
to any
liability which Xxxxxx may otherwise have to the Seller or any such director,
officer, employee, agent or controlling person of the Seller.
I-2
As
used
herein:
“Seller
Information”
means
any information relating to Seller, the Mortgage Loans and/or the underwriting
guidelines relating to the Mortgage Loans provided by the Seller for inclusion
in the Prospectus Supplement or the Term Sheet.
(c) Promptly
after receipt by any indemnified party under this Section
1
of
notice of any claim or the commencement of any action, such indemnified
party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section
1,
notify
the indemnifying party in writing of the claim or the commencement of that
action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section
1
except
to the extent it has been materially prejudiced by such failure; and
provided,
further,
however,
that
the failure to notify any indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party otherwise than under
this
Section
1.
If
any
such claim or action shall be brought against an indemnified party, and
it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled
to participate therein and, to the extent that it wishes, jointly with
any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice
from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, except as provided in the following paragraph,
the indemnifying party shall not be liable to the indemnified party under
this
Section
1
for any
legal or other expenses subsequently incurred by the indemnified party
in
connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the
employment thereof has been specifically authorized by the indemnifying
party in
writing; (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are
different
from or additional to those available to the indemnifying party and in
the
reasonable judgment of such counsel it is necessary or appropriate for
such
indemnified party to employ separate counsel; or (iii) the indemnifying
party
has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party
shall
not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, the indemnifying party
shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same
general allegations or circumstances, be liable for the reasonable fees
and
expenses of more than one separate firm of attorneys (in addition to local
counsel) at any time for all such indemnified parties.
I-3
Each
indemnified party, as a condition of the indemnity agreements contained
in this
Section
1,
shall
cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of any
such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested
an indemnifying party to reimburse the indemnified party for reasonable
fees and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party
shall not have reimbursed the indemnified party in accordance with such
request
prior to the date of such settlement.
(d) If
the
indemnification provided for in this Section
1
is
unavailable to an indemnified party, then the indemnifying party, in lieu
of
indemnifying such indemnified party, shall contribute to the amount paid
or
payable by such indemnified party as a result of such losses, claims, damages
or
liabilities, in such proportion as is appropriate to reflect the relative
fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or
prevent
such statement or omission and any other equitable considerations.
(e) The
indemnity and contribution agreements contained in this Section
1
shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Xxxxxx,
the
Underwriter, the Initial Purchaser, their respective Affiliates, directors,
officers, employees or agents or any person controlling the Depositor,
Xxxxxx,
the Underwriter, the Initial Purchaser or any such Affiliate, and (iii)
acceptance of and payment for any of the Offered Certificates or Private
Certificates.
2. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and confirmed
by mail to Wachovia Mortgage Corporation, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Fax: (000) 000-0000,
with a copy to Wachovia Mortgage Corporation, 0000 Xxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxx Xxxxxx, Fax: (000) 000-0000;
if
sent to Xxxxxx, xxxx be mailed, delivered or faxed or emailed and confirmed
by
mail to Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx, Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to (i) Xxxxx X. Xxx, Xxxxxx
Xxxxxxx - Legal Counsel, Securities, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Email: xxxxx.x.xxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx - SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if to the
Depositor, will be mailed, delivered or telegraphed and confirmed to
[___________]; Attention: [________]; or if to the Underwriter, will be
mailed,
delivered or telegraphed and confirmed to [_________]; or if to the Initial
Purchaser, will be mailed, delivered or telegraphed and confirmed to
[_________]; Attention: [__________].
I-4
3. Miscellaneous.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding upon
the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. This Agreement may be executed in counterparts,
each of
which when so executed and delivered shall be considered an original, and
all
such counterparts shall constitute one and the same instrument. Capitalized
terms used but not defined herein shall have the meanings provided in the
P&S.
[SIGNATURE
PAGE FOLLOWS]
I-5
| [DEPOSITOR] | ||
| By: __________________________ | ||
| Name: | ||
| Title: |
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | ||
| By: ________________________ | ||
| Name: | ||
| Title: |
| WACHOVIA MORTGAGE CORPORATION | ||
| By:_________________________ | ||
| Name: | ||
| Title: |
I-6
Exhibit
J
Form
of Annual Certification
Re: [_______________]
(the “Trust”),
Mortgage Pass-Through Certificates, Series [_____], issued pursuant to
the
Pooling and Servicing Agreement, dated as of [_____], 200[_] (the “Pooling
and Servicing Agreement”),
among
[_____], as depositor (the “Depositor”),
[_____], as trustee (the “Trustee”),
[_____], as servicer (the “Servicer”),
and
[_____], as responsible party
I,
[identify the certifying individual], certify to the Depositor and the
Trustee,
and their officers, directors and Affiliates, and with the knowledge and
intent
that they will rely upon this certification, that:
1. The
servicing information required to be provided to the Trustee by the Servicer
under the Pooling and Servicing Agreement has been so provided;
2. I
am
responsible for reviewing the activities performed by the Servicer under
the
Pooling and Servicing Agreement and based upon my knowledge and the annual
compliance review required under the Pooling and Servicing Agreement, and
except
as disclosed in the annual compliance statement required to be delivered
to the
Trustee in accordance with the terms of the Pooling and Servicing Agreement
(which has been so delivered to the Trustee), the Servicer has fulfilled
its
obligations under the Pooling and Servicing Agreement; and
3. All
significant deficiencies relating to the Servicer’s compliance with the minimum
servicing standards for purposes of the report provided by an independent
public
accountant, after conducting a review conducted in compliance with the
Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set
forth in the Pooling and Servicing Agreement, have been disclosed to such
accountant and are included in such report.
| Date: _________________________ | ||
| _______________________________ | ||
| [Signature] | ||
| [Title] |
J-1