EMC MORTGAGE CORPORATION Purchaser and WELLS FARGO BANK, N.A. Company
EXECUTION COPY
October
28, 2004
EMC
MORTGAGE CORPORATION
Purchaser
and
XXXXX
FARGO BANK, N.A.
Company
AMENDED
AND RESTATED MASTER
SELLER'S
WARRANTIES AND SERVICING AGREEMENT
Dated
as of November 1, 2005
Fixed
Rate and Adjustable Rate Mortgage Loans
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
DEFINITIONS
|
|
ARTICLE
II
|
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
|
|
ARTICLE
III
|
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
|
ARTICLE
IV
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|
ARTICLE
V
|
|
PAYMENTS
TO PURCHASER
|
|
ARTICLE
VI
|
|
GENERAL
SERVICING PROCEDURES
|
|
ARTICLE
VII
|
|
COMPANY
TO COOPERATE
|
|
ARTICLE
VIII
|
|
THE
COMPANY
|
|
ARTICLE
IX
|
|
SECURITIZATION
TRANSACTIONS; WHOLE LOAN TRANSFERS AND AGENCY TRANSFERS
|
|
ARTICLE
X
|
|
DEFAULT
|
|
ARTICLE
XI
|
|
TERMINATION
|
|
ARTICLE
XII
|
|
MISCELLANEOUS
PROVISIONS
|
EXHIBITS
|
Exhibit
A
|
Form
of Assignment and Conveyance
|
|
|
|
Agreement
|
|
|
Exhibit
B
|
||
|
Exhibit
C
|
Contents
of Each Retained Mortgage File,
|
|
|
|
Servicing
File and Custodial Mortgage File
|
|
|
Exhibit
D
|
Servicing
Criteria
|
|
Exhibit
E
|
Form
of Sarbanes Certification
|
|
|
Exhibit
F
|
Form
of Xxxxxxxx-Xxxxx Back-Up
|
|
|
|
Certification
|
|
|
Exhibit
G
|
Form
of Assignment, Assumption and
|
|
|
Recognition
Agreement
|
This
is an Amended and Restated Master
Seller's Warranties and Servicing Agreement for residential first mortgage
loans, dated and effective as of November 1, 2005, and is executed between
EMC
Mortgage Corporation, as purchaser (the "Purchaser"), and Xxxxx Fargo Bank,
N.A., as seller and servicer (the "Company").
WITNESSETH
WHEREAS,
the Purchaser has agreed to
purchase from the Company and the Company has agreed to sell to the Purchaser
from time to time (each a “Transaction”) certain residential Mortgage Loans
which shall be delivered as whole loans (each a “Loan Package”) on various dates
(each a “Closing Date”) as provided for in certain Assignment and Conveyance
Agreements by and between the Purchaser and the Company as executed from time
to
time; and
WHEREAS,
each of the Mortgage Loans is
secured by a mortgage, deed of trust or other security instrument creating
a
first lien on a residential dwelling located in the jurisdiction indicated
on
the related Mortgage Loan Schedule; and
WHEREAS,
the Purchaser and the Company
wish to prescribe the manner of purchase of the Mortgage Loans and the
conveyance, servicing and control of the Mortgage Loans.
NOW,
THEREFORE, in consideration of the
mutual agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Purchaser and the Company agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following
words and phrases, unless the content otherwise requires, shall have the
following meanings:
Accepted
Servicing
Practices: With respect to any Mortgage Loan, those mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located.
Adjustment
Date: As
to each adjustable rate Mortgage Loan, the date on which the Mortgage Interest
Rate is adjusted in accordance with the terms of the related Mortgage Note
and
Mortgage.
Agency/Agencies: Xxxxxx
Mae, Xxxxxxx Mac or GNMA, or any of them as applicable.
Agency
Transfer: Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement: This
Amended and Restated Master Seller's Warranties and Servicing Agreement and
all
amendments hereof and supplements hereto.
ALTA: The
American
Land Title Association or any successor thereto.
Appraised
Value: With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property, provided, however, in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan.
Assignment
and Conveyance
Agreement: With
respect to each Transaction, the agreement between the Purchaser and the Company
conveying to the Purchaser all the right, title and interest of the Company
in
and to the related Mortgage Loans listed on the related Mortgage Loan Schedule,
a form of which is attached hereto as Exhibit A.
Assignment
of
Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Purchaser or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary
to
cause the Purchaser to be shown as the owner of the related Mortgage on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS, including assignment of the MIN
Number which will appear either on the Mortgage or the Assignment of Mortgage
to
MERS.
Assignment
of Mortgage Note and
Pledge Agreement: With respect to a Cooperative Loan, an
assignment of the Mortgage Note and Pledge Agreement.
Assignment
of Proprietary
Lease: With respect to a Cooperative Loan, an assignment of the
Proprietary Lease sufficient under the laws of the jurisdiction wherein the
related Cooperative Apartment is located to effect the assignment of such
Proprietary Lease.
Business
Day: Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the states where the parties are located or are
authorized or obligated by law or executive order to be closed.
Buydown
Agreement: An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, the Company or any other source, plus interest
earned thereon, in order to enable the Mortgagor to reduce the payments required
to be made from the Mortgagor’s funds in the early years of a Mortgage
Loan.
Buydown
Mortgage
Loan: Any Mortgage Loan in respect of which, pursuant to a
Buydown Agreement, (i) the Mortgagor pays less than the full Monthly Payments
specified in the Mortgage Note for a specified period, and (ii) the difference
between the payments required under such Buydown Agreement and the Mortgage
Note
is provided from Buydown Funds.
Buydown
Period: The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date: The
date or dates, set forth in the related Commitment Letter, on which from time
to
time the Purchaser shall purchase and the Company shall sell the Mortgage Loans
listed on the related Mortgage Loan Schedule for each Transaction.
Code: The
Internal
Revenue Code of 1986, as it may be amended from time to time or any successor
statute thereto, and applicable U.S. Department of the Treasury regulations
issued pursuant thereto.
Commission: The
United States Securities and Exchange Commission.
Commitment
Letter: The commitment letter executed in relation to each
Transaction that sets forth, among other things, the Purchase Price for the
related Mortgage Loans.
Company: Xxxxx
Fargo
Bank, N.A., or its successor in interest or assigns, or any successor to the
Company under this Agreement appointed as herein provided.
Company
Information: As defined in Section 9.01(f)(i)(A).
Condemnation
Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Cooperative: The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment: The specific dwelling unit relating to a Cooperative
Loan.
Cooperative
Lien Search: A search for (a) federal tax liens, mechanics’
liens, lis pendens, judgments of record or otherwise against (i) the
Cooperative, (ii) the seller of the Cooperative Apartment and (iii) the Company
if the Cooperative Loan is a refinanced Mortgage Loan, (b) filings of financing
statements and (c) the deed of the Project into the Cooperative.
Cooperative
Loan: A Mortgage Loan that is secured by Cooperative Shares
and a Proprietary Lease granting exclusive rights to occupy the related
Cooperative Apartment.
Cooperative
Shares: The shares of stock issued by a Cooperative, owned by the
Mortgagor, and allocated to a Cooperative Apartment.
Covered
Loan: A Mortgage Loan categorized as “Covered” pursuant to the
Standard & Poor’s Glossary for File Format for LEVELS® Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing
Date.
Custodial
Account: The separate account or accounts created and maintained
pursuant to Section 4.04.
Custodial
Agreement: The agreement governing the retention of the originals
of each Mortgage Note, Mortgage, Assignment of Mortgage and other Mortgage
Loan
Documents, a form of which is annexed hereto as Exhibit B.
Custodial
Mortgage
File: The items referred to as items (1), (2), (4), (5) and (10)
in Exhibit C annexed hereto to be delivered by the Company to the Custodian
on
the related Closing Date with respect to a particular Mortgage Loan, and any
additional documents required to be added to the Custodial Mortgage File and
delivered to the custodian pursuant to this Agreement.
Custodian: The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
Cut-off
Date: With respect to
each Transaction, the first day of the month in which the related Closing Date
occurs.
Deleted
Mortgage
Loan: A Mortgage Loan which is repurchased by the Company in
accordance with the terms of this Agreement and which is, in the case of a
substitution pursuant to Section 3.03, replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: The Business
Day immediately preceding the related Remittance Date.
Due
Date: The first
day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period: With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending in the first day
of
the month of the Remittance Date.
Electronic
Data
File: The final electronic file of the Mortgage Loans, in
relation to each Transaction, provided by Company to the Purchaser on or before
the related Closing Date.
Errors
and Omissions Insurance
Policy: An errors and omissions insurance policy to be maintained
by the Company pursuant to Section 4.12.
Escrow
Account: The
separate account or accounts created and maintained pursuant to Section
4.06.
Escrow
Payments: With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default: Any
one of the conditions or circumstances enumerated in Section 10.01.
Exchange
Act: The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx: The
Federal National Mortgage Association or any successor thereto.
FDIC: The
Federal
Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond: A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
Xxxxxxx
Mac: The
Federal Home Loan Mortgage Corporation or any successor thereto.
Gross
Margin: With
respect to each adjustable rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which is added to the Index in order to
determine the related Interest Rate, as set forth in the Mortgage Loan
Schedule.
High
Cost Loan: A Mortgage Loan classified as (a) a “high cost” loan
under the Home Ownership and Equity Protection Act of 1994, (b) a “high cost
home,” “threshold,” “covered,” “high risk home,” “predatory” or similar loan
under any other applicable state, federal or local law or (c) a Mortgage Loan
categorized as “High Cost” pursuant to the Standard & Poor’s Glossary for
File Format for LEVELS® Version 5.6, Appendix E, as revised from time to time
and in effect on each related Closing Date.
Home
Loan: A Mortgage Loan categorized as “Home Loan” pursuant to the
Standard & Poor’s Glossary for File Format for LEVELS® Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing
Date.
Incremental
Interest: As to any Incremental Rate Mortgage Loan, the amount of
interest accrued on such Mortgage Loan attributable to the Incremental Rate;
provided, however, that with respect to any payment of interest received in
respect of such a Mortgage Loan (whether paid by the Mortgagor or received
as
Liquidation Proceeds or otherwise) which is less than the full amount of
interest then due with respect to such Mortgage Loan, only that portion of
such
payment of interest that bears the same relationship to the total amount of
such
payment of interest as the Incremental Rate, if any, in respect of such Mortgage
Loan bears to the Mortgage Interest Rate shall be allocated to the Incremental
Interest with respect thereto.
Incremental
Rate: For an Incremental Rate Mortgage Loan, the per annum
increase to the initial Mortgage Interest Rate set forth in the addendum to
the
related Mortgage Note, which increase takes effect upon the occurrence of
certain specified conditions prior to the first Adjustment Date and remains
in
effect until the first Adjustment Date.
Incremental
Rate Mortgage Loan: A Mortgage Loan for which the related
Mortgage Note includes an addendum that allows for an increase to the initial
Mortgage Interest Rate upon the occurrence of certain specified
conditions.
Index:
With respect to any
adjustable rate Mortgage Loan, the index identified on the Mortgage Loan
Schedule and set forth in the related Mortgage Note for the purpose of
calculating the interest 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 for which an interest-only
payment feature is allowed during the interest-only period set forth in the
related Mortgage Note.
Lender
Paid Mortgage Insurance Policy or LPMI Policy: A PMI Policy for
which the Company pays all premiums from its own funds, without reimbursement
therefor.
Liquidation
Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of
the
Mortgage Loan.
Loan-to-Value
Ratio or
LTV: With respect to any Mortgage Loan, the ratio of the original
loan amount of the Mortgage Loan at its origination (unless otherwise indicated)
to the Appraised Value of the Mortgaged Property.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, or any successor
in interest 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: Mortgage
Identification Number used to identify mortgage loans registered under
MERS.
Monthly
Advance: The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date, required to be advanced
by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment: The
scheduled monthly payment of principal and interest on a Mortgage Loan or in
the
case of an Interest Only Mortgage Loan, payments of (i) interest, or (ii)
principal and interest, if applicable, on a Mortgage Loan.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note or the Pledge Agreement securing the Mortgage Note
for a Cooperative Loan.
Mortgage
Impairment Insurance
Policy: A mortgage impairment or blanket hazard insurance policy
as described in Section 4.11.
Mortgage
Interest
Rate: The annual rate of interest borne on a Mortgage Note in
accordance with the provisions of the Mortgage Note.
Mortgage
Loan: An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan
Documents: With respect to a Mortgage Loan, the original related
Mortgage Note with applicable addenda and riders, the original related Security
Instrument and the originals of any required addenda and riders, the original
related Assignment and any original intervening related Assignments, the
original related title insurance policy and evidence of the related PMI Policy,
if any.
Mortgage
Loan Remittance
Rate: With respect to each Mortgage Loan, the annual rate of
interest remitted to the Purchaser, which shall be equal to the Mortgage
Interest Rate minus the Servicing Fee Rate.
Mortgage
Loan
Schedule: With respect to each Transaction, a schedule of
Mortgage Loans, which shall be attached to the related Assignment and Conveyance
Agreement, setting forth the following information with respect to each Mortgage
Loan: (1) the Company’s Mortgage Loan number; (2) the city state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property
is
a single family residence, two-family residence, three-family residence,
four-family residence, a Cooperative Loan, planned unit development or
condominium; (4) the current Mortgage Interest Rate; (5) the current net
Mortgage Interest Rate; (6) the current Monthly Payment; (7) the Gross Margin;
(8) the original term to maturity; (9) the scheduled maturity date; (10) the
principal balance of the Mortgage Loan as of the related Cut-off Date after
deduction of payments of principal due on or before the related Cut-off Date
whether or not collected; (11) the Loan-to-Value; (12) the next Adjustment
Date;
(13) the lifetime Mortgage Interest Rate cap; (14) whether the Mortgage Loan
is
convertible or not; (15) a code indicating the mortgage guaranty insurance
company; (16) a code indicating whether the Mortgage Loan contains pledged
assets; (17) a code indicating whether the Mortgage Loan has balloon payments;
(18) a code indicating whether the Mortgage Loan is an Interest Only Mortgage
Loan; (16) a field indicating whether the Mortgage Loan is a Home Loan; and
(17)
the Servicing Fee.
Mortgage
Note: The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property: The real property securing repayment of the debt
evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the
Cooperative Apartment.
Mortgagor: The
obligor on a Mortgage Note.
Officer's
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or the President or a Vice President or an
Assistant Vice President and certified by the Treasurer or the Secretary or
one
of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
Opinion
of Counsel: A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Periodic
Interest Rate
Cap: As to each adjustable rate Mortgage Loan, the maximum
increase or decrease in the Mortgage Interest Rate on any Adjustment Date
pursuant to the terms of the Mortgage Note.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge
Agreement: With respect to a Cooperative Loan, the specific
agreement creating a first lien on and pledge of the Cooperative Shares and
the
appurtenant Proprietary Lease.
Pledge
Instruments: With respect to a Cooperative Loan, the Stock Power,
the Assignment of the Proprietary Lease and the Assignment of the Mortgage
Note
and Pledge Agreement.
PMI
Policy: A policy
of primary mortgage guaranty insurance evidenced by an electronic form and
certificate number issued by a Qualified Insurer, as required by this Agreement
with respect to certain Mortgage Loans. The premiums on a PMI Policy
may be paid by the Mortgagor or by the Company from its own funds, without
reimbursement. If the premiums are paid by the Company, the PMI
Policy is an LPMI Policy.
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.
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates
in
any month or months subsequent to the month of prepayment.
Principal
Prepayment
Period: The month preceding the month in which the related
Remittance Date occurs.
Project: With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease: With respect to a Cooperative Loan, a lease on a
Cooperative Apartment evidencing the possessory interest of the Mortgagor in
such Cooperative Apartment.
Purchaser: EMC
Mortgage Corporation, or its successor in interest or any successor to the
Purchaser under this Agreement as herein provided.
Purchase
Price: The purchase price for each Loan Package shall be as
stated in the related Commitment Letter.
Qualified
Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company
and
such Person that contemplated that such person would underwrite mortgage loans
from time to time, for sale to the Company, in accordance with underwriting
guidelines designated by the Company (“Designated Guidelines”) or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Company within 180 days after origination; (iii) either (x)
the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company’s own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iv) the Company employed, at the time
such
Mortgage Loans were acquired by the Company, pre-purchased or post-purchased
quality assurance procedures (which may involve, among other things, review
of a
sample or mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
Qualified
Depository: A deposit account or accounts maintained with a
federal or state chartered depository institution the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations
of
such holding company) are rated A-1 by Standard & Poor’s Ratings Group or
Prime-1 by Xxxxx’x Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company)
at
the time any deposits are held on deposit therein.
Qualified
Insurer: A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Mae or Xxxxxxx Mac.
Qualified
Substitute Mortgage
Loan: A mortgage loan eligible to be substituted by the Company
for a Deleted Mortgage Loan which must, on the date of such substitution, (i)
have an outstanding principal balance, after deduction of all scheduled payments
due in the month of substitution (or in the case of a substitution of more
than
one mortgage loan for a Deleted Mortgage Loan, an aggregate principal balance),
not in excess of the Stated Principal Balance of the Deleted Mortgage Loan;
(ii)
have a Mortgage Loan Remittance Rate not less than and not more than two percent
(2%) greater than the Mortgage Loan Remittance Rate of the Deleted Mortgage
Loan; (iii) have a remaining term to maturity not greater than and not more
than
one year less than that of the Deleted Mortgage Loan; (iv) be of the same type
as the Deleted Mortgage Loan and (v) comply with each representation and
warranty set forth in Sections 3.01 and 3.02.
Rating
Agency/Agencies: Any nationally recognized statistical Rating
Agency, or its successors, including Standard & Poor’s, a division of The
XxXxxx-Xxxx Companies, Xxxxx’x Investors Service, Inc. and Fitch
Ratings.
Recognition
Agreement: An agreement whereby a Cooperative and a lender with
respect to a Cooperative Loan (i) acknowledge that such lender may make, or
intends to make, such Cooperative Loan, and (ii) make certain agreements with
respect to such Cooperative Loan.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: The agreement or agreements entered into by the
Company and the Purchaser and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or Securitization
Transaction.
Reconstitution
Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement may be removed from this Agreement and reconstituted as
part of a Securitization Transaction, Agency Transfer or Whole Loan Transfer
pursuant to Section 9.01 hereof. The Reconstitution Date shall be
such date as the Purchaser shall designate.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff
of
the Commission, or as may be provided by the Commission or its staff from time
to time.
REMIC: A
"real estate
mortgage investment conduit" within the meaning of Section 860D of the
Code.
REMIC
Provisions: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1,
Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance
Date: The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any month.
REO
Disposition: The
final sale by the Company of any REO Property.
REO
Disposition
Proceeds: All amounts received with respect to an REO Disposition
pursuant to Section 4.16.
REO
Property: A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price: Unless agreed otherwise by the Purchaser and the Company,
a price equal to (i) the Stated Principal Balance of the Mortgage Loan plus
(ii)
interest on such Stated Principal Balance at the Mortgage Loan Remittance Rate
from the date on which interest has last been paid and distributed to the
Purchaser through the last day of the month in which such repurchase takes
place, less amounts received or advanced in respect of such repurchased Mortgage
Loan which are being held in the Custodial Account for distribution in the
month
of repurchase.
Retained
Mortgage
File: The items referred to as items (3), (6), (7), (8) and (9)
in Exhibit C annexed hereto with respect to a particular Mortgage
Loan that are not required to be delivered to the Custodian pursuant to this
Agreement, and any additional documents required to be added to the Retained
Mortgage File pursuant to this Agreement.
Securities
Act: The
Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (a) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (b) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Servicing
Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses other than Monthly Advances (including reasonable attorney's
fees and disbursements) incurred in the performance by the Company of its
servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.08.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing
Fee: With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Company, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is
received. The obligation of the Purchaser to pay the Servicing Fee is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to
the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
Servicing
Fee
Rate: The per annum percentage for each Mortgage Loan, as stated
in the Commitment Letter.
Servicing
File: With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals of all documents in the Retained Mortgage File which are not delivered
to the Custodian and copies of the Mortgage Loan Documents listed in the
Custodial Agreement the originals of which are delivered to the Custodian
pursuant to Section 2.03.
Servicing
Officer: Any officer of the Company 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 Company to the Purchaser upon
request, as such list may from time to time be amended.
Stated
Principal
Balance: As to each Mortgage Loan, (i) the principal balance of
the Mortgage Loan at 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 related
Mortgage Loan representing payments or recoveries of principal or advances
in
lieu thereof.
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Stock
Certificate: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the
Cooperative.
Stock
Power: With respect to a Cooperative Loan, an assignment of the
Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subsidy
Account: An account maintained by the Company specifically to
hold all Subsidy Funds to be applied to individual Subsidy Loans.
Subsidy
Funds: With respect to any Subsidy Loans, funds contributed by
the employer of a Mortgagor in order to reduce the payments required from the
Mortgagor for a specified period in specified amounts.
Subsidy
Loan: Any Mortgage Loan subject to a temporary interest subsidy
agreement pursuant to which the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
by the employer of the Mortgagor. Each Subsidy Loan will be
identified as such in the related Electronic Data File.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Company.
Time$aver®
Mortgage
Loan: A Mortgage Loan which has been refinanced pursuant to a
Company program that allows a rate/term refinance of an existing Company
serviced loan with minimal documentation.
Whole
Loan
Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a third party, which sale or transfer is not a
Securitization Transaction or Agency Transfer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL
AGREEMENT; DELIVERY OF DOCUMENTS
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Custodial Mortgage
Files;
Maintenance of Retained Mortgage
Files and
Servicing Files.
|
Pursuant
to an Assignment and
Conveyance Agreement, on the related Closing Date, the Company, simultaneously
with the payment of the Purchase Price by the Purchaser, shall thereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement and the related Assignment and Conveyance
Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans listed on the respective Mortgage Loan Schedule annexed to such
Assignment and Conveyance Agreement, together with the Retained Mortgage Files
and Custodial Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Section 2.03, the Company
shall deliver the Custodial Mortgage File for each Mortgage Loan comprising
the
related Loan Package to the Custodian.
The
contents of each Retained Mortgage
File not delivered to the Custodian are and shall be held in trust by the
Company for the benefit of the Purchaser as the owner thereof. The
Company shall maintain a Servicing File consisting of a copy of the contents
of
each Custodial Mortgage File and the originals of the documents in each Retained
Mortgage File not delivered to the Custodian. The possession of each
Retained Mortgage File and Servicing File by the Company is at the will of
the
Purchaser for the sole purpose of servicing the related Mortgage Loan, and
such
retention and possession by the Company is in a custodial capacity
only. Upon the sale of the Mortgage Loans the ownership of each
Mortgage Note, the related Mortgage and the related Custodial Mortgage File
and
Servicing File shall vest immediately in the Purchaser, and the ownership of
all
records and documents with respect to the related Mortgage Loan prepared by
or
which come into the possession of the Company shall vest immediately in the
Purchaser and shall be retained and maintained by the Company, in trust, at
the
will of the Purchaser and only in such custodial capacity. The
Company shall release its custody of the contents of any Servicing File only
in
accordance with written instructions from the Purchaser, unless such release
is
required as incidental to the Company's servicing of the Mortgage Loans or
is in
connection with a repurchase of any Mortgage Loan pursuant to Section 3.03
or
6.02. All such costs associated with the release, transfer and
re-delivery to the Company shall be the responsibility of the Purchaser other
than any related recording costs (especially in instances of
breach).
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause, the MERS® System to indicate that such
Mortgage Loans have been assigned by the Company 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 as
beneficial owner of such Mortgage Loans.
|
Section
2.02
|
Books
and Records; Transfers of Mortgage
Loans.
|
From
and after the sale of the Mortgage
Loans to the Purchaser in the related Loan Package on each Closing Date, all
rights arising out of such Mortgage Loans including but not limited to all
funds
received on or in connection with such Mortgage Loans, shall be received and
held by the Company in trust for the benefit of the Purchaser as owner of such
Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the supervision
of the servicing of such Mortgage Loans.
The
sale of each Mortgage Loan shall be
reflected on the Company's balance sheet and other financial statements as
a
sale of assets by the Company. The Company shall be responsible for
maintaining, and shall maintain, a complete set of books and records for each
Mortgage Loan which shall be marked clearly to reflect the ownership of each
Mortgage Loan by the Purchaser. In particular, the Company 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, 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 Xxxxxx Mae or Xxxxxxx Mac and records of periodic
inspections 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 Company 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 Company complies with the requirements of the Xxxxxx Mae Selling and
Servicing Guide, as amended from time to time.
The
Company shall maintain with respect
to each Mortgage Loan and shall make available for inspection by any Purchaser
or its designee the related Servicing File during the time the Purchaser retains
ownership of such Mortgage Loan and thereafter in accordance with applicable
laws and regulations.
The
Company shall keep at its servicing
office books and records in which, subject to such reasonable regulations as
it
may prescribe, the Company shall note transfers of Mortgage Loans. No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the
Company shall be under no obligation to deal with any Person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
Person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Company of the
transfer. Upon receipt of notice of the transfer, the Company shall
xxxx its books and records to reflect the ownership of the Mortgage Loans of
such assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or
transferred. Such notification of a transfer shall include a final
loan schedule which shall be received by the Company no fewer than five (5)
Business Days before the last Business Day of the month. If such
notification is not received as specified above, the Company’s duties to remit
and report as required by Section 5 shall begin with the next Due
Period.
|
Section
2.03
|
Custodial
Agreement; Delivery of
Documents.
|
On
each Closing Date with respect to
each Mortgage Loan comprising the related Loan Package, the Company shall
deliver and release to the Custodian the related Custodial Mortgage File as
set
forth in Exhibit C attached hereto.
The
Custodian shall certify its receipt
of any Mortgage Loan Documents actually received on or prior to such Closing
Date and as required to be delivered pursuant to the Custodial Agreement, as
evidenced by the Initial Certification of the Custodian in the form annexed
to
the Custodial Agreement. The Purchaser will be responsible for the
fees and expenses of the Custodian.
Upon
the Purchaser’s request, the
Company shall deliver to Purchaser or its designee within ten (10) days after
such request such contents of the Retained Mortgage file so
requested. In the event that the company fails to deliver to the
Purchaser or its designee the requested contents of the Retained Mortgage File
within such ten-day period, and if the Company does not cure such failure within
five (5) days following receipt of written notification of such failure, the
Company shall repurchase each related Mortgage Loan at the price and in the
manner specified in Section 3.03.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one week of their
execution, provided, however, that the Company shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
ten
(10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty days of its submission for recordation.
In
the event the public recording
office is delayed in returning any original document which the Company is
required to deliver at any time to the Custodian in accordance with the terms
of
the Custodial Agreement or which the Company is required to maintain in the
related Retained Mortgage File, the Company shall deliver to the Custodian
or to
the Retained Mortgage File, as applicable, within 240 days of its submission
for
recordation, a copy of such document and an Officer's Certificate, which shall
(i) identify the recorded document; (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will
be
delivered to the Custodian. The Company will be required to deliver
such document to the Custodian or to the Retained Mortgage File, as applicable,
by the date specified in (iv) above. An extension of the date
specified in (iv) above may be requested from the Purchaser, which consent
shall
not be unreasonably withheld.
In
the event that new, replacement,
substitute or additional Stock Certificates are issued with respect to existing
Cooperative Shares, the Company immediately shall deliver to the Custodian
the
new Stock Certificates, together with the related Stock Powers in
blank. Such new Stock Certificates shall be subject to the related
Pledge Instruments and shall be subject to all of the terms, covenants and
conditions of this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
Section
3.01
|
Company
Representations and Warranties.
|
The
Company hereby represents and
warrants to the Purchaser that, as of the related Closing Date:
|
|
(a)
|
Due
Organization and Authority.
|
|
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States and has
all
licenses necessary to carry on its business as now being conducted
and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by the
Company, and in any event the Company is in compliance with the laws
of
any such state to the extent necessary to ensure the enforceability
of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Company has the
full
power and authority to execute and deliver this Agreement and to
perform
in accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be delivered
pursuant
to this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Company;
and all requisite action has been taken by the Company to make this
Agreement valid and binding upon the Company in accordance with its
terms;
|
|
|
(b)
|
Ordinary
Course of Business.
|
|
|
The
consummation of the transactions contemplated by this Agreement are
in the
ordinary course of business of the Company, who is in the business
of
selling and servicing loans, and the transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Company pursuant to
this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable
jurisdiction;
|
|
|
(c)
|
No
Conflicts.
|
|
|
Neither
the execution and delivery of this Agreement, the acquisition of
the
Mortgage Loans by the Company, the sale of the Mortgage Loans to
the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of
or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles
of
incorporation or by-laws or any legal restriction or any agreement
or
instrument to which the Company is now a party or by which it is
bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property
is subject, or impair the ability of the Purchaser to realize on
the
Mortgage Loans, or impair the value of the Mortgage
Loans;
|
|
|
(d)
|
Ability
to Service.
|
|
|
The
Company is an approved seller/servicer of conventional residential
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing
of
mortgage loans of the same type as the Mortgage Loans. The
Company is in good standing to sell mortgage loans to and service
mortgage
loans for Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including
but not limited to a change in insurance coverage, which would make
the
Company unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility
requirements or which would require notification to either Xxxxxx
Mae or
Xxxxxxx Mac;
|
|
|
(e)
|
Reasonable
Servicing Fee.
|
|
|
The
Company 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 Company, for accounting and
tax
purposes, as compensation for the servicing and administration of
the
Mortgage Loans pursuant to this
Agreement;
|
|
|
(f)
|
Ability
to Perform.
|
|
|
The
Company does not believe, nor does it have any reason or cause to
believe,
that it cannot perform each and every covenant contained in this
Agreement. The Company is solvent and the sale of the Mortgage
Loans will not cause the Company to become insolvent. The sale
of the Mortgage Loans is not undertaken to hinder, delay or defraud
any of
the Company's creditors;
|
|
|
(g)
|
No
Litigation Pending.
|
|
|
There
is no action, suit, proceeding or investigation pending or threatened
against the Company which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company, or in any
material impairment of the right or ability of the Company to carry
on its
business substantially as now conducted, or in any material liability
on
the part of the Company, or which would draw into question the validity
of
this Agreement or the Mortgage Loans or of any action taken or to
be
contemplated herein, or which would be likely to impair materially
the
ability of the Company to perform under the terms of this
Agreement;
|
|
|
(h)
|
No
Consent Required.
|
|
|
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
the Company of or compliance by the Company with this Agreement or
the
sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such
approval
has been obtained prior to the related Closing
Date;
|
|
|
(i)
|
Selection
Process.
|
The
Mortgage Loans were selected from among either the outstanding fixed rate or
adjustable rate one- to four-family mortgage loans in the Company's mortgage
banking portfolio at the related Closing Date as to which the representations
and warranties set forth in Section 3.02 could be made and such selection was
not made in a manner so as to affect adversely the interests of the
Purchaser;
|
|
(j)
|
No
Untrue Information.
|
|
|
Neither
this Agreement nor any statement, report or other document furnished
or to
be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of
fact or
omits to state a fact necessary to make the statements contained
therein
not misleading;
|
|
|
(k)
|
Sale
Treatment.
|
|
|
The
Company has determined that the disposition of the Mortgage Loans
pursuant
to this Agreement will be afforded sale treatment for accounting
and tax
purposes;
|
|
|
(l)
|
No
Material Change.
|
|
|
There
has been no material adverse change in the business, operations,
financial
condition or assets of the Company since the date of the Company’s most
recent financial statements;
|
|
|
(m)
|
No
Brokers’ Fees.
|
|
|
The
Company has not dealt with any broker, investment banker, agent or
other
Person that may be entitled to any commission or compensation in
the
connection with the sale of the Mortgage Loans;
and
|
|
(n)
|
MERS.
|
The
Company is a member of MERS in good standing.
|
Section
3.02
|
Representations
and Warranties Regarding Individual Mortgage
Loans.
|
As
to each Mortgage Loan, the Company
hereby represents and warrants to the Purchaser that as of the related Closing
Date:
|
|
(a)
|
Mortgage
Loans as Described.
|
|
|
The
information set forth in the respective Mortgage Loan Schedule and
the
information contained on the respective Electronic Data File delivered
to
the Purchaser is true and correct;
|
|
|
(b)
|
Payments
Current.
|
|
|
All
payments required to be made up to the related Cut-off Date for the
Mortgage Loan under the terms of the Mortgage Note have been made
and
credited. No payment under any Mortgage Loan has been thirty
(30) days delinquent more than one time within twelve (12) months
prior to
the related Closing Date;
|
|
|
(c)
|
No
Outstanding Charges.
|
|
|
There
are no defaults in complying with the terms of the Mortgages, and
all
taxes, governmental assessments, insurance premiums, leasehold payments,
water, sewer and municipal charges, which previously became due and
owing
have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and which
has
been assessed but is not yet due and payable. The Seller has
not advanced funds, or induced, solicited directly or indirectly,
the
payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to
the day
which precedes by one month the Due Date of the first installment
of
principal and interest;
|
|
|
(d)
|
Original
Terms Unmodified.
|
|
|
The
terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, except by a written instrument
which
has been recorded, if necessary to protect the interests of the Purchaser
and which has been delivered to the Custodian. The substance of
any such waiver, alteration or modification has been approved by
the
issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related
Mortgage Loan Schedule. No Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement
approved by the issuer of any related PMI Policy and the title insurer,
to
the extent required by the policy, and which assumption agreement
was
delivered to the Custodian pursuant to the terms of the Custodial
Agreement;
|
|
|
(e)
|
No
Defenses.
|
|
|
The
Mortgage Loan is 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 either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part,
or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right
of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
|
|
|
(f)
|
No
Satisfaction of Mortgage.
|
|
|
The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such release, cancellation, subordination
or rescission;
|
|
|
(g)
|
Validity
of Mortgage Documents.
|
|
|
The
Mortgage Note and the Mortgage and related documents are genuine,
and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the
Mortgage Note and the Mortgage had legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
|
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge
Agreement, the Proprietary Lease, the Stock Power, Recognition Agreement and
the
Assignment of Proprietary Lease had legal capacity to enter into the Mortgage
Loan and to execute and deliver such documents, and such documents have been
duly and properly executed by such parties;
|
(h)
|
No
Fraud.
|
|
|
No
error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
the Company, or the Mortgagor, or to the best of the Company’s knowledge,
any appraiser, any builder, or any developer, or any other party
involved
in the origination of the Mortgage Loan or in the application of
any
insurance in relation to such Mortgage
Loan;
|
|
|
(i)
|
Compliance
with Applicable Laws.
|
|
|
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit and privacy protection, equal credit opportunity,
disclosure or predatory and abusive lending laws applicable to the
Mortgage Loan have been complied with, and the Company 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. 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;
|
|
|
(j)
|
Location
and Type of Mortgaged Property.
|
|
|
The
Mortgaged Property is located in the state identified in the related
Mortgage Loan Schedule and consists of a single, contiguous parcel
of real
property with a detached single family residence erected thereon,
or a
two- to four-family dwelling, or an individual condominium unit in
a
condominium project, or a Cooperative Apartment, or an individual
unit in
a planned unit development or a townhouse, provided, however, that
any
condominium project or planned unit development shall conform with
the
applicable Xxxxxx Mae requirements, or the underwriting guidelines
of the
company, regarding such dwellings, and no residence or dwelling is
a
mobile home. As of the respective date of the appraisal for
each Mortgaged Property, any Mortgaged Property being used for commercial
purposes conforms to the underwriting guidelines of the Company and,
to
the best of the Company’s knowledge, since the date of such appraisal, no
portion of the Mortgage Property has been used for commercial purposes
outside of the underwriting guidelines of the
Company;
|
|
(k)
|
Valid
First Lien.
|
|
|
The
Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property
and
all installations and mechanical, electrical, plumbing, heating and
air
conditioning systems located in or annexed to such buildings, and
all
additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only
to:
|
|
|
(1)
|
the
lien of current real property taxes and assessments not yet due and
payable;
|
|
|
(2)
|
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of the
Mortgage Loan and (i) referred to or otherwise considered in the
appraisal
made for the originator of the Mortgage Loan and (ii) which do not
adversely affect the Appraised Value of the Mortgaged Property set
forth
in such appraisal; and
|
|
|
(3)
|
other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
|
|
Any
security agreement, chattel mortgage or equivalent document related
to and
delivered in connection with the Mortgage Loan establishes and creates
a
valid, subsisting and enforceable first lien and first priority security
interest on the property described therein and the Company has full
right
to sell and assign the same to the
Purchaser;
|
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related 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 (ii) 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 Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
|
(l)
|
Full
Disbursement of Proceeds.
|
|
|
The
proceeds of the Mortgage Loan have been fully disbursed, except for
escrows established or created due to seasonal weather conditions,
and
there is no requirement for future advances thereunder. 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 Mortgage;
|
|
|
(m)
|
Consolidation
of Future Advances.
|
|
|
Any
future advances made prior to the related Cut-off Date, have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears
a
single interest rate and single repayment term reflected on the related
Mortgage Loan Schedule. 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 Xxx or Xxxxxxx Mac; the consolidated principal
amount
does not exceed the original principal amount of the Mortgage Loan;
the
Seller shall not make future advances after the related Cut-Off
Date;
|
|
(n)
|
Ownership.
|
|
|
The
Company is the sole owner of record and holder of the Mortgage Loan
and
the related Mortgage Note and the Mortgage are not assigned or pledged,
and the Company has good and marketable title thereto and has full
right
and authority to transfer and sell the Mortgage Loan to the
Purchaser. The Company is transferring the Mortgage Loan free
and clear of any and all encumbrances, liens, pledges, equities,
participation interests, claims, charges or security interests of
any
nature encumbering such Mortgage
Loan;
|
|
(o)
|
Origination/Doing
Business.
|
|
|
The
Mortgage Loan was originated by a savings and loan association, a
savings
bank, a commercial bank, a credit union, an insurance company, or
similar
institution which is supervised and examined by a federal or state
authority or by a mortgagee approved by the Secretary of Housing
and Urban
Development pursuant to Sections 203 and 211 of the National Housing
Act.
All parties which have had any interest in the Mortgage Loan, whether
as
mortgagee, assignee, pledgee or otherwise, are (or, during the period
in
which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of
the laws
of the state wherein the Mortgaged Property is located, and (2) organized
under the laws of such state, or (3) qualified to do business in
such
state, or (4) federal savings and loan associations or national banks
having principal offices in such state, or (5) not doing business
in such
state;
|
|
(p)
|
LTV,
PMI Policy.
|
|
|
Except
as indicated on the Electronic Data File, those Mortgage Loans with
an LTV
greater than 80% at the time of origination, a portion of the unpaid
principal balance of the Mortgage Loan is and will be insured as
to
payment defaults by a PMI Policy. If the Mortgage Loan is
insured by a PMI Policy for which the Mortgage pays all premiums,
the
coverage will remain in place until (i) the LTV is decreased to 78%
or
(ii) the PMI Policy is otherwise terminated pursuant to the Homeowners
Protection Act of 1998, 12 USC 4901, et seq. All provisions of
such PMI Policy have been and are being complied with, such policy
is in
full force and effect, and all premiums due thereunder have been
paid. The Qualified Insurer has a claims paying ability
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any Mortgage Loan
subject to a PMI Policy obligates the Mortgagor or in the case of
an LPMI
Policy, obligates the Company, thereunder to maintain the PMI Policy
or
LPMI Policy and to pay all premiums and charges in connection
therewith. No prior holder of the Mortgage, including the
Company, has done, by act or omission, anything which would impair
the
coverage of such PMI Policy;
|
|
(q)
|
Title
Insurance.
|
|
|
The
Mortgage Loan is covered by an ALTA lender's title insurance policy
or
other generally acceptable form of policy of 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 the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the
original
principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of Paragraph (k) of this Section
3.02, and against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing
for
adjustment to the Mortgage Interest Rate and Monthly
Payment. The Company is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in
full
force and effect and will be in force and effect upon the consummation
of
the transactions contemplated by this Agreement. No claims have
been made under such lender's title insurance policy, and no prior
holder
of the Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
|
|
(r)
|
No
Defaults.
|
|
|
There
is no default, breach, violation or event of acceleration existing
under
the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and
neither the Company nor its predecessors have waived any default,
breach,
violation or event of acceleration;
|
|
(s)
|
No
Mechanics' Liens.
|
|
|
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
the law
could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with,
the lien
of the related Mortgage which are not insured against by the title
insurance policy referenced in Paragraph (q)
above;
|
|
(t)
|
Location
of Improvements; No
Encroachments.
|
|
|
Except
as insured against by the title insurance policy referenced in Paragraph
(q) above, all improvements which were considered in determining
the
Appraised Value of the Mortgaged Property lay wholly within the boundaries
and building restriction lines of the Mortgaged Property and no
improvements on adjoining properties encroach upon the Mortgaged
Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
|
|
|
(u)
|
Payment
Terms.
|
|
|
Except
with respect to the Interest Only Mortgage Loans, principal payments
commenced no more than 60 days after the funds were disbursed to
the
Mortgagor in connection with the Mortgage Loan. The Mortgage
Loans have an original term to maturity of not more than 30 years,
with
interest payable in arrears on the first day of each month. As
to each adjustable rate Mortgage Loan on each applicable Adjustment
Date,
the Mortgage Interest Rate will be adjusted to equal the sum of the
Index
plus the applicable Gross Margin, rounded up or down to the nearest
multiple of 0.125% indicated by the Mortgage Note; provided that
the
Mortgage Interest Rate will not increase or decrease by more than
2.00% on
any Adjustment Date, and will in no event exceed the maximum Mortgage
Interest Rate or be lower than the minimum Mortgage Interest Rate
listed
on the Mortgage Loan Schedule for such Mortgage Loan. Each
adjustable rate Mortgage Note requires a monthly payment which is
sufficient, during the period prior to the first adjustment to the
Mortgage Interest Rate, to fully amortize the outstanding principal
balance as of the first day of such period over the then remaining
term of
such Mortgage Note and to pay interest at the related Mortgage Interest
Rate; provided however, with respect to any Interest Only Mortgage
Loans,
the Mortgage Note allows a Monthly Payment of interest only during
the
period prior to the first Adjustment Date and upon the first adjustment
to
the Mortgage Interest Rate, the Mortgage Note requires a Monthly
Payment
of principal and interest, sufficient to fully amortize the outstanding
principal balance over the then remaining term of such Mortgage
Loan. As to each adjustable rate Mortgage Loan, if the related
Mortgage Interest Rate changes on an adjustment date, the then outstanding
principal balance will be reamortized over the remaining life of
such
Mortgage Loan. No Mortgage Loan contains terms or provisions
which would result in negative
amortization;
|
|
(v)
|
Customary
Provisions.
|
|
|
The
Mortgage contains customary and enforceable provisions such as to
render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby, including, (i) in the case of a Mortgage designated as a
deed of
trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available
to a Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the
Mortgage;
|
|
(w)
|
Occupancy
of the Mortgaged Property.
|
|
|
As
of the date of origination, the Mortgaged Property was lawfully occupied
under applicable law;
|
|
(x)
|
No
Additional Collateral.
|
|
|
The
Mortgage Note is not and has not been secured by any collateral,
pledged
account, except as indicated on the Electronic Data File, or other
security except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage
referred
to in (k) above;
|
|
(y)
|
Deeds
of Trust.
|
|
|
In
the event the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Mortgagee to the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the
Mortgagor;
|
|
(z)
|
Acceptable
Investment.
|
|
|
The
Company has no knowledge of any circumstances or conditions with
respect
to the Mortgage Loan, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can reasonably be expected to cause
private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent,
or
adversely affect the value or marketability of the Mortgage
Loan;
|
|
(aa)
|
Transfer
of Mortgage Loans.
|
|
|
If
the Mortgage Loan is not a MERS Mortgage Loan, the Assignment upon
the
insertion of the name of the assignee and recording information is
in
recordable form and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is
located;
|
|
(bb)
|
Mortgaged
Property Undamaged.
|
|
|
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;
|
|
(cc)
|
Collection
Practices; Escrow Deposits.
|
|
|
The
origination and collection practices used with respect to the Mortgage
Loan have been in accordance with Accepted Servicing Practices, and
have
been in all material respects legal and proper. With respect to
escrow deposits and Escrow Payments, all such payments are in the
possession of the Company and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof
have not
been made. All Escrow Payments have been collected in full
compliance with state and federal law. No escrow deposits or
Escrow Payments or other charges or payments due the Company have
been
capitalized under the Mortgage
Note;
|
|
(dd)
|
No
Condemnation.
|
|
|
There
is no proceeding pending or to the best of the Company’s knowledge
threatened for the total or partial condemnation of the related Mortgaged
Property;
|
|
(ee)
|
The
Appraisal.
|
|
|
The
Servicing File contains an appraisal of the related Mortgaged
Property. As to each Time$aver® Mortgage Loan, the appraisal
may be from the original of the existing Company-serviced loan, which
was
refinanced via such Time$aver® Mortgage Loan. The appraisal was
conducted by an appraiser who had no interest, direct or indirect,
in the
Mortgaged Property or in any loan made on the security thereof; and
whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan, and the appraisal and the appraiser both satisfy the
applicable requirements of Title XI of the Financial Institution
Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
|
|
(ff)
|
Insurance.
|
|
|
The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire and
such
hazards as are covered under a standard extended coverage endorsement
and
such other hazards as are customary in the area where the Mortgaged
Property is located pursuant to insurance policies conforming to
the
requirements of Section 4.10, in an amount which is at least equal
to the
lesser of (i) 100% of the insurable value, on a replacement cost
basis, of
the improvements on the related Mortgaged Property, and (ii) the
greater
of (i) the outstanding principal balance of the Mortgage Loan and
(ii) an
amount such that the proceeds of such insurance shall be sufficient
to
prevent the application to the Mortgagor or the loss payee of any
coinsurance clause under the policy. If the Mortgaged Property
is a condominium unit, it is included under the coverage afforded
by a
blanket policy for the project. If the improvements on the
Mortgaged Property are in an area identified in the Federal Register
by
the Federal Emergency Management Agency as having special flood hazards,
a
flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage
not less
than the least of (A) the outstanding principal balance of the
Mortgage Loan, (B) the full insurable value and (C) the maximum
amount of insurance which was available under the Flood Disaster
Protection Act of 1973, as amended. All individual insurance policies
contain a standard mortgagee clause naming the Company and its successors
and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to
maintain a hazard insurance policy at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of
the
Mortgage to obtain and maintain such insurance at such Mortgagor's
cost
and expense, and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will
be in
full force and effect and inure to the benefit of the Purchaser upon
the
consummation of the transactions contemplated by this
Agreement. The Company has not acted or failed to act so as to
impair the coverage of any such insurance policy or the validity,
binding
effect and enforceability thereof;
|
|
|
(gg)
|
Servicemembers’
Civil Relief Act.
|
|
|
The
Mortgagor has not notified the Company, and the Company has no knowledge
of any relief requested or allowed to the Mortgagor under the
Servicemembers’ Civil Relief Act, as
amended;
|
|
|
(hh)
|
No
Graduated Payments or Contingent
Interests.
|
|
|
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;
|
|
|
(ii)
|
No
Construction Loans.
|
|
|
No
Mortgage Loan was made in connection with (i) the construction or
rehabilitation of a Mortgage Property or (ii) facilitating the trade-in
or
exchange of a Mortgaged Property other than a construction-to-permanent
loan which has converted to a permanent Mortgage
Loan;
|
|
|
(jj)
|
Underwriting.
|
|
|
Each
Mortgage Loan was underwritten in accordance with the underwriting
guidelines of the Company, which were in effect at the time the Mortgage
Loan was originated; and the Mortgage Note and Mortgage are on forms
acceptable to Xxxxxxx Mac or Xxxxxx
Mae;
|
|
|
(kk)
|
Buydown
Mortgage Loans.
|
|
|
With
respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
|
|
|
(i)
|
On
or before the date of origination of such Mortgage Loan, the Company
and
the Mortgagor, or the Company, the Mortgagor and the seller of the
Mortgaged Property or a third party entered into a Buydown
Agreement. The Buydown Agreement provides that the seller of
the Mortgaged Property (or third party) shall deliver to the Company
temporary Buydown Funds in an amount equal to the aggregate undiscounted
amount of payments that, when added to the amount the Mortgagor on
such
Mortgage Loan is obligated to pay on each Due Date in accordance
with the
terms of the Buydown Agreement, is equal to the full scheduled Monthly
Payment due on such Mortgage Loan. The temporary Buydown Funds
enable the Mortgagor to qualify for the Buydown Mortgage
Loan. The effective interest rate of a Buydown Mortgage Loan if
less than the interest rate set forth in the related Mortgage Note
will
increase within the Buydown Period as provided in the related Buydown
Agreement so that the effective interest rate will be equal to the
interest rate as set forth in the related Mortgage Note. The
Buydown Mortgage Loan satisfies the requirements of Xxxxxx Xxx or
Xxxxxxx
Mac guidelines;
|
|
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms rather
than
the payment terms of the Buydown Agreement. The Buydown
Agreement provides for the payment by the Mortgagor of the full amount
of
the Monthly Payment on any Due Date that the Buydown Funds are
available. The Buydown Funds were not used to reduce the
original principal balance of the Mortgage Loan or to increase the
Appraised Value of the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement and, if the Buydown
Funds were provided by the Company and if required under Xxxxxx Mae
or
Xxxxxxx Mac guidelines, the terms of the Buydown Agreement were disclosed
to the appraiser of the Mortgaged
Property;
|
|
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a principal payment for the outstanding balance of the Mortgage
Loan;
|
|
|
(iv)
|
As
of the date of origination of the Mortgage Loan, the provisions of
the
related Buydown Agreement complied with the requirements of Xxxxxx
Mae or
Xxxxxxx Mac regarding buydown
agreements.
|
|
|
(ll)
|
Delivery
of Custodial Mortgage Files.
|
Any
documents required to be delivered by the Company under this Agreement have
been
delivered to the Custodian. The Company is in possession of a
complete, true and accurate Retained Mortgage File and Custodial Mortgage File
in compliance with Exhibit C hereto;
|
(mm)
|
No
Violation of Environmental
Laws.
|
There
is
no pending action or proceeding directly involving any Mortgaged Property of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; and to the best of the Company’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;
|
|
(nn)
|
No
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and to the best of
the
Company’s knowledge, as of the related Closing Date, the Company has not
received notice that any Mortgagor is a debtor under any state or federal
bankruptcy or insolvency proceeding;
|
(oo)
|
HOEPA.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
|
(pp)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
|
|
(i)
|
The
Cooperative Shares are held by a person as a tenant-stockholder in
a
Cooperative. Each original UCC financing statement,
continuation statement or other governmental filing or recordation
necessary to create or preserve the perfection and priority of the
first
lien and security interest in the Cooperative Loan and Proprietary
Lease
has been timely and properly made. Any security agreement,
chattel mortgage or equivalent document related to the Cooperative
Loan
and delivered to Purchaser or its designee establishes in Purchaser
a
valid and subsisting perfected first lien on and security interest
in the
Mortgaged Property described therein, and Purchaser has full right
to sell
and assign the same. The Proprietary Lease term expires no less
than five years after the Mortgage Loan term or such other term acceptable
to Xxxxxx Mae or Xxxxxxx Mac;
|
|
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent to make
the
same which company is acceptable to Xxxxxx Mae and qualified to do
business in the jurisdiction where the Cooperative is
located;
|
|
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the terms
of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative Shares
owned by such Mortgagor first to the Cooperative; (c) there is no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative has
been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
210 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions; and
(f) the
Cooperative has good and marketable title to the Project, and owns
the
Project either in fee simple or under a leasehold that complies with
the
requirements of the Xxxxxx Xxx Guidelines; such title is free and
clear of
any adverse liens or encumbrances, except the lien of any blanket
mortgage;
|
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
|
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related Cooperative
Loan;
|
|
(qq)
|
Georgia
Fair Lending Act.
|
There
is
no Mortgage Loan that was originated on or after October 1, 2002 and before
March 7, 2003, which is secured by property located in the State of
Georgia;
|
(rr)
|
Methodology.
|
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely
payments on the Mortgage Loan;
|
(ss)
|
Imposition
of a Premium.
|
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) the prepayment premium is
disclosed to the borrower in the loan documents pursuant to applicable state
and
federal law, and (ii) notwithstanding any state or federal law to the contrary,
the Company shall recommend that such prepayment premium is not imposed in
any
instance when the mortgage debt is accelerated as the result of the borrower’s
default in making the loan payments;
|
(tt)
|
Single
Premium Credit Life.
|
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, disability, accident, unemployment or health insurance products)
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, disability, accident, unemployement or health
insurance product) as part of 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;
No
Arbitration
Provision.
|
|
With
respect to each Mortgage Loan, neither the related Mortgage nor the
related Mortgage Note requires the Mortgagor to submit to arbitration
to
resolve any dispute arising out of or relating in any way to the
Mortgage
Loan transaction;
|
|
(ww)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has fully furnished, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (i.e. favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis; and
|
(xx)
|
Illinois
Interest Act.
|
Any
Mortgage Loan with a Mortgaged Property in the State of Illinois complies with
the Illinois Interest Act.
|
Section
3.03
|
Repurchase.
|
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 to the Purchaser and the delivery of the Mortgage
Loan Documents to the Custodian 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 failure to examine any Custodial
Mortgage Files or Retained Mortgage File. Upon discovery by either
the Company 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 (or which materially and adversely
affects the interests of Purchaser in the related Mortgage Loan in the case
of a
representation and warranty relating to a particular Mortgage Loan), the party
discovering such breach shall give prompt written notice to the
other.
Within
ninety (90) days of the earlier
of either discovery by or notice to the Company of any breach of a
representation or warranty which materially and adversely affects the value
of
the Mortgage Loans, the Company shall use its best efforts promptly to cure
such
breach in all material respects and, if such breach cannot be cured, the Company
shall, at the Purchaser's option, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a breach shall involve any
representation or warranty set forth in Section 3.01, and such breach cannot
be
cured within 90 days of the earlier of either discovery by or notice to the
Company of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Company at the Repurchase
Price. However, if the breach shall involve a representation or
warranty set forth in Section 3.02 and the Company discovers or receives notice
of any such breach within 120 days of the related Closing Date, the Company
shall, if the breach cannot be cured, at the Purchaser's option and provided
that the Company has a Qualified Substitute Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan (a
"Deleted Mortgage Loan") and substitute in its place a Qualified Substitute
Mortgage Loan or Loans, provided that any such substitution shall be effected
not later than 120 days after the related Closing Date. If the
Company has no Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan within ninety (90) days of the written notice of the
breach or the failure to cure, whichever is later. Any repurchase of
a Mortgage Loan or Loans pursuant to the foregoing provisions of this Section
3.03 shall be accomplished by deposit in the Custodial Account of the amount
of
the Repurchase Price for distribution to Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution.
At
the time of repurchase or
substitution, the Purchaser and the Company shall arrange for the reassignment
of the Deleted Mortgage Loan to the Company and the delivery to the Company
of
any documents held by the Custodian relating to the Deleted Mortgage Loan.
If the Company
repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Company shall
cause MERS to designate on the MERS® System to remove the Purchaser as the
beneficial holder with respect to such Mortgage Loan. In the
event of a repurchase or substitution, the Company shall, simultaneously with
such reassignment, give written notice to the Purchaser that such repurchase
or
substitution has taken place, amend the related Mortgage Loan Schedule to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement, and,
in
the case of substitution, identify a Qualified Substitute Mortgage Loan and
amend the related Mortgage Loan Schedule to reflect the addition of such
Qualified Substitute Mortgage Loan to this Agreement. In connection
with any such substitution, the Company shall be deemed to have made as to
such
Qualified Substitute Mortgage Loan the representations and warranties set forth
in this Agreement except that all such representations and warranties set forth
in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by
delivering to the Custodian for such Qualified Substitute Mortgage Loan the
documents required by Section 2.03, with the Mortgage Note endorsed as required
by Section 2.03. No substitution will be made in any calendar month
after the Determination Date for such month. The Company shall
deposit in the Custodial Account the Monthly Payment less the Servicing Fee
due
on such Qualified Substitute Mortgage Loan or Loans in the month following
the
date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Company. With respect to any Deleted Mortgage loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter
be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For
any month in which the Company
substitutes a Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan,
the Company shall determine the amount (if any) by which the aggregate principal
balance of all Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans (after application of scheduled principal payments due in the
month of substitution). The amount of such shortfall shall be
distributed by the Company in the month of substitution pursuant to Section
5.01. Accordingly, on the date of such substitution, the Company
shall deposit from its own funds into the Custodial Account an amount equal
to
the amount of such shortfall.
In
addition to such repurchase or
substitution obligation, the Company shall indemnify the Purchaser and hold
it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Company representations and
warranties contained in this Agreement. It is understood and agreed
that the obligations of the Company set forth in this Section 3.03 to cure,
substitute for or repurchase a defective Mortgage Loan and to indemnify the
Purchaser as provided in this Section 3.03 constitute the sole remedies of
the
Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause of action against the Company
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)
discovery of such breach by the Purchaser or notice thereof by the Company
to
the Purchaser, (ii) failures by the Company to cure such breach or repurchase
such Mortgage Loan as specified above, and (iii) demand upon the Company by
the
Purchaser for compliance with this Agreement.
In
the event a Mortgage Loan pays off
in full on or before the related Closing Date, the Company must repay the
Purchaser the difference between the Unpaid Principal Balance of such Mortgage
Loan as of the date of pay off and the Unpaid Principal Balance multiplied
by
the purchase price percentage adjusted, if necessary in accordance with the
Commitment Letter.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
4.01
|
Company
to Act as Servicer.
|
The
Company, as an independent
contractor, shall service and administer the Mortgage Loans and shall have
full
power and authority, acting alone or through the utilization of a Subcontractor,
to do any and all things in connection with such servicing and administration
which the Company may deem necessary or desirable, consistent with the terms
of
this Agreement and with Accepted Servicing Practices. The Company
shall be responsible for any and all acts of a Subcontractor, and the Company’s
utilization of a Subcontractor shall in no way relieve the liability of the
Company under this Agreement.
Consistent
with the terms of this
Agreement, the Company may waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in
any
manner grant indulgence to any Mortgagor if in the Company's reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided, however, that the Company
shall not make any future advances with respect to a Mortgage Loan and (unless
the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Company, imminent and the Company has obtained the
prior written consent of the Purchaser) the Company shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, defer or forgive the payment of principal (except for actual
payments of principal) or change the final maturity date on such Mortgage
Loan. In the event of any such modification which permits the
deferral of interest or principal payments on any Mortgage Loan, the Company
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 5.03,
the difference between (a) such month's principal and one month's interest
at
the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Company
shall be entitled to reimbursement for such advances to the same extent as
for
all other advances made pursuant to Section 5.03. Without limiting
the generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and the
Purchaser, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties. If
reasonably required by the Company, the Purchaser shall furnish the Company
with
any powers of attorney and other documents necessary or appropriate to enable
the Company to carry out its servicing and administrative duties under this
Agreement.
In
servicing and administering the
Mortgage Loans, the Company shall employ procedures (including collection
procedures) and exercise the same care that it customarily employs and exercises
in servicing and administering mortgage loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with the requirements of this Agreement, and the Purchaser's reliance
on the Company.
The
Company is authorized and empowered by the Purchaser, in its own name, when
the
Company 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, with written consent of the Purchaser, 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.
The
Company shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
The
Company shall apply any Principal Prepayment on an Interest Only Mortgage Loan
to the then-outstanding principal balance, at which time the interest-only
payment feature shall be extinguished. The related Monthly Payment
shall thereafter consist of both principal and interest components, and the
amount of such Monthly Payment shall not change prior to the next Adjustment
Date.
|
Section
4.02
|
Liquidation
of Mortgage Loans.
|
In
the event that any payment due under
any Mortgage Loan and not postponed pursuant to Section 4.01 is not paid when
the same becomes due and payable, or in the event the Mortgagor fails to perform
any other covenant or obligation under the Mortgage Loan and such failure
continues beyond any applicable grace period, the Company shall take such action
as (1) the Company would take under similar circumstances with respect to a
similar mortgage loan held for its own account for investment, (2) shall be
consistent with Accepted Servicing Practices, (3) the Company shall determine
prudently to be in the best interest of Purchaser, and (4) is consistent with
any related PMI Policy. In the event that any payment due under any
Mortgage Loan is not postponed pursuant to Section 4.01 and remains delinquent
for a period of 90 days or any other default continues for a period of 90 days
beyond the expiration of any grace or cure period, the Company shall commence
foreclosure proceedings, the Company shall notify the Purchaser in writing
of
the Company's intention to do so, and the Company shall not commence foreclosure
proceedings if the Purchaser objects to such action within three (3) Business
Days of receiving such notice. In the event the Purchaser objects to
such foreclosure action, the Company shall not be required to make Monthly
Advances with respect to such Mortgage Loan, pursuant to Section 5.03, and
the
Company's obligation to make such Monthly Advances shall terminate on the 90th
day referred to above. In such connection, the Company shall from its
own funds make all necessary and proper Servicing Advances, provided, however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Purchaser after reimbursement to itself for such expenses and (b) that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 4.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
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 Company 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. The cost for such
inspection or review shall be borne by the Purchaser. Upon completion
of the inspection or review, the Company 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 Company shall proceed
with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed in
lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In
the event the Purchaser directs the Company not to proceed with foreclosure
or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed
for
all Servicing Advances made with respect to the related Mortgaged Property
from
the Custodial Account pursuant to Section 4.05 hereof.
|
Section
4.03
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the related Cut-off
Date until the principal and interest on all Mortgage Loans are paid in full,
the Company shall proceed diligently to collect all payments due under each
of
the Mortgage Loans when the same shall become due and payable and shall take
special care in ascertaining and estimating Escrow Payments and all other
charges that will become due and payable with respect to the Mortgage Loan
and
the Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
|
Section
4.04
|
Establishment
of and Deposits to Custodial
Account.
|
The
Company shall segregate and hold
all funds collected and received pursuant to a Mortgage Loan separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Custodial Accounts, in the form of time deposit or demand accounts,
titled "Xxxxx Fargo Bank, N.A. in trust for the Purchaser and/or subsequent
purchasers of Mortgage Loans - P & I." The Custodial Account
shall be established with a Qualified Depository. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Custodial Account. Any
funds deposited into the Custodial Account shall at all times be insured to
the
fullest extent allowed by applicable law. Funds deposited in the
Custodial Account may be drawn on by the Company in accordance with Section
4.05.
The
Company shall deposit in the
Custodial Account within one (1) Business Day of Company’s receipt, and retain
therein, the following collections received by the Company and payments made
by
the Company after the related Cut-off Date, other than payments of principal
and
interest due on or before the related Cut-off Date, or received by the Company
prior to the related Cut-off Date but allocable to a period subsequent
thereto:
|
|
(i)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
|
(ii)
|
all
payments on account of interest on the Mortgage Loans adjusted to
the
Mortgage Loan Remittance Rate;
|
|
|
(iii)
|
all
Liquidation Proceeds;
|
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property or
released
to the Mortgagor in accordance with Section 4.14), Section 4.11 and
Section 4.15;
|
|
|
(v)
|
all
Condemnation Proceeds which are not applied to the restoration or
repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 4.14;
|
|
|
(vi)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 4.01, 5.03, 6.01 or 6.02;
|
|
|
(vii)
|
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 3.03 and all amounts required to be deposited
by the
Company in connection with a shortfall in principal amount of any
Qualified Substitute Mortgage Loan pursuant to Section
3.03;
|
|
(viii)
|
with
respect to each Principal Prepayment an amount (to be paid by the
Company
out of its funds) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one
month's
interest on the amount of principal so prepaid at the Mortgage Loan
Remittance Rate;
|
|
|
(ix)
|
any
amounts required to be deposited by the Company pursuant to Section
4.11
in connection with the deductible clause in any blanket hazard insurance
policy;
|
|
|
(x)
|
any
amounts received with respect to or related to any REO Property and
all
REO Disposition Proceeds pursuant to Section 4.16;
and
|
|
|
(xi)
|
an
amount from the Subsidy Account that when added to the Mortgagor’s payment
will equal the full monthly amount due under the related Mortgage
Note.
|
The
foregoing requirements for deposit
into the Custodial Account shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments in the nature
of late payment charges and assumption fees, to the extent permitted by Section
6.01, need not be deposited by the Company into the Custodial
Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the Company
and the Company shall be entitled to retain and withdraw such interest from
the
Custodial Account pursuant to Section 4.05.
|
Section
4.05
|
Permitted
Withdrawals From Custodial
Account.
|
The
Company shall, from time to time,
withdraw funds from the Custodial Account for the following
purposes:
|
|
(i)
|
to
make payments to the Purchaser in the amounts and in the manner provided
for in Section 5.01;
|
|
|
(ii)
|
to
reimburse itself for Monthly Advances of the Company's funds made
pursuant
to Section 5.03, the Company's right to reimburse itself pursuant
to this
subclause (ii) being limited to amounts received on the related Mortgage
Loan which represent late payments of principal and/or interest respecting
which any such advance was made, it being understood that, in the
case of
any such reimbursement, the Company's right thereto shall be prior
to the
rights of Purchaser, except that, where the Company is required to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, the
Company's
right to such reimbursement shall be subsequent to the payment to
the
Purchaser of the Repurchase Price pursuant to such sections 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 for any
unpaid
Servicing Fees, the Company's right to reimburse itself pursuant
to this
subclause (iii) with respect to any Mortgage Loan being limited to
related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and
such
other amounts as may be collected by the Company from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood that,
in the
case of any such reimbursement, the Company's right thereto shall
be prior
to the rights of Purchaser, except that where the Company is required
to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, in which
case
the Company's right to such reimbursement shall be subsequent to
the
payment to the Purchaser of the Repurchase Price pursuant to such
sections
and all other amounts required to be paid to the Purchaser with respect
to
such Mortgage Loan. Upon Purchaser's request, the Company shall
provide documentation supporting the Company's Servicing
Advances;
|
|
|
(iv)
|
to
pay itself interest on funds deposited in the Custodial
Account;
|
|
|
(v)
|
to
reimburse itself for expenses incurred and reimbursable to it pursuant
to
Section 8.01;
|
|
|
(vi)
|
to
pay any amount required to be paid pursuant to Section 4.16 related
to any
REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property, the
amount
of such expenditure or withdrawal from the Custodial Account shall
be
limited to amounts on deposit in the Custodial Account with respect
to the
related REO Property;
|
|
|
(vii)
|
to
reimburse itself for any Servicing Advances or REO expenses after
liquidation of the Mortgaged Property not otherwise reimbursed
above;
|
|
|
(viii)
|
to
remove funds inadvertently placed in the Custodial Account by the
Company;
and
|
|
|
(ix)
|
to
clear and terminate the Custodial Account upon the termination of
this
Agreement.
|
In
the event that the Custodial Account
is interest bearing, on each Remittance Date, the Company shall withdraw all
funds from the Custodial Account except for those amounts which, pursuant to
Section 5.01, the Company is not obligated to remit on such Remittance
Date. The Company may use such withdrawn funds only for the purposes
described in this Section 4.05.
|
Section
4.06
|
Establishment
of and Deposits to Escrow
Account.
|
The
Company shall segregate and hold
all funds collected and received pursuant to a Mortgage Loan constituting Escrow
Payments separate and apart from any of its own funds and general assets and
shall establish and maintain one or more Escrow Accounts, in the form of time
deposit or demand accounts, titled, "Xxxxx Fargo Bank, N.A., in trust for the
Purchaser and/or subsequent purchasers of Residential Mortgage Loans, and
various Mortgagors - T & I." The Escrow Accounts shall be
established with a Qualified Depository, in a manner which shall provide maximum
available insurance thereunder. Upon request of the Purchaser and within ten
(10) days thereof, the Company shall provide the Purchaser with written
confirmation of the existence of such Escrow Account. Funds deposited
in the Escrow Account may be drawn on by the Company in accordance with Section
4.07.
The
Company shall deposit in the Escrow
Account or Accounts within one (1) Business Days of Company’s receipt, 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
amounts representing Insurance Proceeds or Condemnation Proceeds
which are
to be applied to the restoration or repair of any Mortgaged Property;
and
|
|
|
(iii)
|
all
payments on account of Buydown
Funds.
|
The
Company shall make withdrawals from
the Escrow Account only to effect such payments as are required under this
Agreement, as set forth in Section 4.07. The Company shall be
entitled to retain any interest paid on funds deposited in the Escrow Account
by
the depository institution, other than interest on escrowed funds required
by
law to be paid to the Mortgagor. To the extent required by law, the
Company shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or
Accounts may be made by the Company only:
|
|
(i)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
mortgage insurance premiums, condominium charges, fire and hazard
insurance premiums or other items constituting Escrow Payments for
the
related Mortgage;
|
|
|
(ii)
|
to
reimburse the Company for any Servicing Advances made by the Company
pursuant to Section 4.08 with respect to a related Mortgage Loan,
but only
from amounts received on the related Mortgage Loan which represent
late
collections of Escrow Payments
thereunder;
|
|
|
(iii)
|
to
refund to any Mortgagor any funds found to be in excess of the amounts
required under the terms of the related Mortgage
Loan;
|
|
|
(iv)
|
for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the
related
Mortgage and Mortgage Note;
|
|
|
(v)
|
for
application to restoration or repair of the Mortgaged Property in
accordance with the procedures outlined in Section
4.14;
|
|
|
(vi)
|
to
pay to the Company, or any Mortgagor to the extent required by law,
any
interest paid on the funds deposited in the Escrow
Account;
|
|
|
(vii)
|
to
remove funds inadvertently placed in the Escrow Account by the
Company;
|
|
(viii)
|
to
remit to Purchaser payments on account of Buydown Funds as applicable;
and
|
|
|
(ix)
|
to
clear and terminate the Escrow Account on the termination of this
Agreement.
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other
Charges.
|
With
respect to each Mortgage Loan, the
Company shall maintain accurate records reflecting the status of ground rents,
taxes, assessments, water rates, sewer rents, and other charges which are or
may
become a lien upon the Mortgaged Property and the status of PMI Policy premiums
and fire and hazard insurance coverage and shall obtain, from time to time,
all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date,
employing for such purpose deposits of the Mortgagor in the Escrow Account
which
shall have been estimated and accumulated by the Company in amounts sufficient
for such purposes, as allowed under the terms of the Mortgage. The
Company assumes full responsibility for the timely payment of all such bills
and
shall effect timely payment of all such charges irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect
such
payments.
|
Section
4.09
|
Protection
of Accounts.
|
The
Company may transfer the Custodial
Account, the Subsidy Account or the Escrow Account to a different Qualified
Depository from time to time with prior written notice to
Purchaser.
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
The
Company shall cause to be
maintained for each Mortgage Loan hazard insurance such that all buildings
upon
the Mortgaged Property are insured by an insurer acceptable to Xxxxxx Xxx or
Xxxxxxx Mac against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
in
an amount which is at least equal to the lesser of (i) 100% of the insurable
value, on a replacement cost basis, of the improvements on the related Mortgaged
Property, and (ii) the greater of (a) the outstanding principal balance of
the
Mortgage Loan and (b) an amount such that the proceeds of such insurance shall
be sufficient to prevent the application to the Mortgagor or the loss payee
of
any coinsurance clause under the policy. In the event a hazard
insurance policy shall be in danger of being terminated, or in the event the
insurer shall cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company
shall notify the Purchaser and the related Mortgagor, and shall use its best
efforts, as permitted by applicable law, to obtain from another qualified
insurer a replacement hazard insurance policy substantially and materially
similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.11 hereof.
If
upon origination of the Mortgage
Loan, the related Mortgaged Property was located in an area identified by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier acceptable to Xxxxxx
Mae or Xxxxxxx Mac in an amount representing coverage equal to the lesser of
(i)
the minimum amount required, under the terms of coverage, to compensate for
any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) 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 Company determines in accordance
with
applicable law 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 Company shall notify the related Mortgagor that the Mortgagor must obtain
such flood insurance coverage, and if said Mortgagor fails to obtain the
required flood insurance coverage within forty-five (45) days after such
notification, the Company shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
If
a Mortgage is secured by a unit in a
condominium project, the Company shall verify that the coverage required of
the
owner's association, including hazard, flood, liability, and fidelity coverage,
is being maintained in accordance with then current Xxxxxx Mae requirements,
and
secure from the owner's association its agreement to notify the Company promptly
of any change in the insurance coverage or of any condemnation or casualty
loss
that may have a material effect on the value of the Mortgaged Property as
security.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor’.
All
policies required hereunder shall
name the Company as loss payee and shall be endorsed with standard or union
mortgagee clauses, without contribution, which shall provide for at least 30
days prior written notice of any cancellation, reduction in amount or material
change in coverage.
The
Company shall not interfere with
the Mortgagor's freedom of choice in selecting either his insurance carrier
or
agent, provided, however, that the Company shall not accept any such insurance
policies from insurance companies unless such companies are acceptable to Xxxxxx
Xxx and Xxxxxxx Mac and are licensed to do business in the jurisdiction in
which
the Mortgaged Property is located. The Company shall determine that
such policies provide sufficient risk coverage and amounts, that they insure
the
property owner, and that they properly describe the property
address.
Pursuant
to Section 4.04, any amounts
collected by the Company under any such policies (other than amounts to be
deposited in the Escrow Account and applied to the restoration or repair of
the
related Mortgaged Property, or property acquired in liquidation of the Mortgage
Loan, or to be released to the Mortgagor, in accordance with the Company's
normal servicing procedures as specified in Section 4.14) shall be deposited
in
the Custodial Account subject to withdrawal pursuant to Section
4.05.
|
Section
4.11
|
Maintenance
of Mortgage Impairment
Insurance.
|
In
the event that the Company shall
obtain and maintain a blanket policy insuring against losses arising from fire
and hazards covered under extended coverage 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. The Company shall
prepare and make any claims on the blanket policy as deemed necessary by the
Company in accordance with Accepted Servicing Practices. Any amounts
collected by the Company under any such policy relating to a Mortgage Loan
shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
4.05. Such policy may contain a deductible clause, in which case, in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been a
loss
which would have been covered by such policy, the Company shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
be
deposited from the Company's funds, without reimbursement
therefor. Upon request of the Purchaser, the Company shall cause to
be delivered to such Purchaser a certificate of insurance and a statement from
the insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days' prior written notice to such
Purchaser.
|
Section
4.12
|
Maintenance
of Fidelity Bond and Errors and Omissions
Insurance.
|
The
Company shall maintain with
responsible companies, at its own expense, a blanket Fidelity Bond and an Errors
and Omissions Insurance Policy, with broad coverage on all officers, employees
or other Persons acting in any capacity requiring such Persons to handle funds,
money, documents or papers relating to the Mortgage Loans ("Company
Employees"). Any such Fidelity Bond and Errors and Omissions
Insurance Policy shall be in the form of the Mortgage Banker's Blanket Bond
and
shall protect and insure the Company against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such Company
Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy also shall protect and insure the Company against losses in connection
with 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 such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve the Company from its duties and
obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be with a company acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and in amounts at least equal to the amounts
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Upon the request of any
Purchaser, the Company shall cause to be delivered to such Purchaser a certified
true copy of such fidelity bond and insurance policy and a statement from the
surety and the insurer that such fidelity bond and insurance policy shall in
no
event be terminated or materially modified without 30 days' prior written notice
to the Purchaser.
|
Section
4.13
|
Inspections.
|
If
any Mortgage Loan is more than 60
days delinquent, the Company immediately shall inspect the Mortgaged Property
and shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty
insurer. The Company shall keep a record of each such inspection and
shall provide the Purchaser with copies of such upon request.
|
Section
4.14
|
Restoration
of Mortgaged Property.
|
The
Company need not obtain the
approval of the Purchaser prior to releasing any Insurance Proceeds or
Condemnation Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. For claims greater than $15,000, at a minimum
the Company shall comply with the following conditions in connection with any
such release of Insurance Proceeds or Condemnation Proceeds:
|
|
(i)
|
the
Company shall receive satisfactory independent verification of completion
of repairs and issuance of any required approvals with respect
thereto;
|
|
|
(ii)
|
the
Company shall take all steps necessary to preserve the priority of
the
lien of the Mortgage, including, but not limited to requiring waivers
with
respect to mechanics' and materialmen's
liens;
|
|
|
(iii)
|
the
Company shall verify that the Mortgage Loan is not in default;
and
|
|
|
(iv)
|
pending
repairs or restoration, the Company shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow
Account.
|
If
the Purchaser is named as an
additional loss payee, the Company is hereby empowered to endorse any loss
draft
issued in respect of such a claim in the name of the Purchaser.
|
Section
4.15
|
Maintenance
of PMI Policy; Claims.
|
Except
as indicated on the Electronic
Data File, with respect to each Mortgage Loan with an LTV in excess of 80%
at
the time of origination, the Company shall, without any cost to the Purchaser
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy insuring a portion of the unpaid principal balance of the Mortgage Loan
as to payment defaults. If the Mortgage Loan is insured by a PMI
Policy for which the Mortgagor pays all premiums, the coverage will remain in
place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC 4901,
et
seq. In the event that such PMI Policy shall be terminated other than
as required by law, the Company shall obtain from another Qualified Insurer
a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to
be a Qualified Insurer, the Company shall determine whether recoveries under
the
PMI Policy are jeopardized for reasons related to the financial condition of
such insurer, it being understood that the Company shall in no event have any
responsibility or liability for any failure to recover under the PMI Policy
for
such reason. If the Company determines that recoveries are so
jeopardized, it shall notify the Purchaser and the Mortgagor, if required,
and
obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in
noncoverage under any applicable PMI Policy of any loss which, but for the
actions of the Company 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 Company shall promptly notify the
insurer under the related PMI Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such PMI Policy and shall take
all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated
as a result of such assumption or substitution of liability, the Company shall
obtain a replacement PMI Policy as provided above.
In
connection with its activities as
servicer, the Company agrees to prepare and present, on behalf of itself and
the
Purchaser, claims to the insurer under any PMI Policy in a timely fashion in
accordance with the terms of such PMI Policy and, in this regard, to take such
action as shall be necessary to permit recovery under any PMI Policy respecting
a defaulted Mortgage Loan. Pursuant to Section 4.04, any amounts
collected by the Company under any PMI Policy shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 4.05.
|
Section
4.16
|
Title,
Management and Disposition of REO
Property.
|
In
the event that title to any
Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure,
the deed or certificate of sale shall be taken in the name of the Purchaser,
or
in the event the Purchaser 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
Company from any attorney duly licensed to practice law in the state where
the
REO Property is located. The Person or Persons holding such title
other than the Purchaser shall acknowledge in writing that such title is being
held as nominee for the Purchaser.
The
Purchaser shall have the option to
manage and operate the REO Property provided the Purchaser gives written notice
of its intention to do so within thirty (30) days after such REO Property is
acquired in foreclosure or by deed in lieu of foreclosure. The election by
the
Purchaser to manage the REO Property shall not constitute a termination of
any
rights of the Company pursuant to Section 11.02. Upon the Company's
receipt of such written notice, it shall be relived of any obligation to manage,
conserve, protect, operate, dispose or sell the Mortgaged Property for the
Purchaser, or its designee. All such duties will become the
obligation of the Purchaser, or its designee. In such connection,
upon the Mortgaged Property being acquired on behalf of the Purchaser, or its
designee, the Company shall fully cooperate with Purchaser to transfer
management of the REO Property to Purchaser, or its designee, and shall
immediately submit a statement of expenses to the Purchaser for reimbursement
within 30 days for all Monthly Advances and Servicing Advances. If
Company does not receive reimbursement of such expenses from the Purchaser
within the 30-days of the statement of expenses, Company shall be permitted
to
withdraw such amount from the Custodial Account pursuant to Section
4.05.
In
the event the Purchaser does not
elect to manage an REO Property, the Company shall manage, conserve and protect
the related REO Property for the Purchaser. The Company, either
itself or through an agent selected by the Company, shall manage the 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 Company shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts
to dispose of the REO Property as soon as possible and shall sell such REO
Property in any event within one year after title has been taken to such REO
Property, unless (i) a REMIC election has not been made with respect to the
arrangement under which the Mortgage Loans and the REO Property are held, and
(ii) the Company 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 period longer than one year is permitted
under the foregoing sentence and is necessary to sell any REO Property, (i)
the
Company shall report monthly to the Purchaser as to the progress being made
in
selling such REO Property and (ii) if, with the written consent of the
Purchaser, a purchase money mortgage is taken in connection with such sale,
such
purchase money mortgage shall name the Company as mortgagee, and such purchase
money mortgage shall not be held pursuant to this Agreement, but instead a
separate participation agreement among the Company and Purchaser shall be
entered into with respect to such purchase money mortgage.
The
Company shall also maintain on each
REO Property fire and hazard insurance with extended coverage in amount which
is
at least equal to the maximum insurable value of the improvements which are
a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in the amount required above.
The
disposition of REO Property shall
be carried out by the Company at such price, and upon such terms and conditions,
as the Company deems to be in the best interests of the
Purchaser. The proceeds of sale of the REO Property shall be promptly
deposited in the Custodial Account. As soon as practical thereafter
the expenses of such sale shall be paid and the Company shall reimburse itself
for any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the
Remittance Date immediately following the Principal Prepayment Period in which
such sale proceeds are received the net cash proceeds of such sale remaining
in
the Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw the
Custodial Account funds necessary for the proper operation management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 4.10 and the fees of any managing agent of the
Company, or the Company itself. The Company shall make monthly distributions
on
each Remittance Date to the Purchaser of the net cash flow from the REO Property
(which shall equal the revenues from such REO Property net of the expenses
described in the Section 4.16 and of any reserves reasonably required from
time
to time to be maintained to satisfy anticipated liabilities for such
expenses).
|
Section
4.17
|
Real
Estate Owned Reports.
|
Together
with the statement furnished
pursuant to Section 5.02, the Company shall furnish to the Purchaser on or
before the Remittance Date each month a statement with respect to any REO
Property covering the operation of such REO Property for the previous month
and
the Company's efforts in connection with the sale of such REO Property and
any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information
as the Purchaser shall reasonably request.
|
Section
4.18
|
Liquidation
Reports.
|
Upon
the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to
a
deed in lieu of foreclosure, the Company shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property.
|
Section
4.19
|
Reports
of Foreclosures and Abandonments of Mortgaged
Property.
|
Following
the foreclosure sale or
abandonment of any Mortgaged Property, the Company shall report such foreclosure
or abandonment as required pursuant to Section 6050J of the Code. The
Company shall file information reports with respect to the receipt of mortgage
interest received in a trade or business and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
|
Section
4.20
|
Application
of Buydown Funds.
|
With
respect to each Buydown Mortgage
Loan, the Company shall have deposited into the Escrow Account, no
later than the last day of the month, Buydown Funds in an amount equal to the
aggregate undiscounted amount of payments that, when added to the amount the
Mortgagor on such Mortgage Loan is obligated to pay on all Due Dates in
accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payments which are required to be paid by the Mortgagor under
the terms of the related Mortgage Note (without regard to the related Buydown
Agreement as if the Mortgage Loan were not subject to the terms of the Buydown
Agreement). With respect to each Buydown Mortgage Loan, the Company
will distribute to the Purchaser on each Remittance Date an amount of Buydown
Funds equal to the amount that, when added to the amount required to be paid
on
such date by the related Mortgagor, pursuant to and in accordance with the
related Buydown Agreement, equals the full Monthly Payment that would otherwise
be required to be paid on such Mortgage Loan by the related Mortgagor under
the
terms of the related Mortgage Note (as if the Mortgage Loan were not a Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
If
the Mortgagor on a Buydown Mortgage
Loan defaults on such Mortgage Loan during the Buydown Period and the Mortgaged
Property securing such Buydown Mortgage Loan is sold in the liquidation thereof
(either by the Company or the insurer under any related Primary Insurance
Policy) the Company shall, on the Remittance Date following the date upon which
Liquidation Proceeds or REO Disposition proceeds are received with respect
to
any such Buydown Mortgage Loan, distribute to the Purchaser all remaining
Buydown Funds for such Mortgage Loan then remaining in the Escrow
Account. Pursuant to the terms of each Buydown Agreement, any amounts
distributed to the Purchaser in accordance with the preceding sentence will
be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such
Mortgage Loan in its entirety during the related Buydown Period, the Company
shall be required to withdraw from the Escrow Account any Buydown Funds
remaining in the Escrow Account with respect to such Buydown Mortgage Loan
in
accordance with the related Buydown Agreement. If a principal
prepayment by a Mortgagor on a Buydown Mortgage Loan during the related Buydown
Period, together with any Buydown Funds then remaining in the Escrow Account
related to such Buydown Mortgage Loan, would result in a principal prepayment
of
the entire unpaid principal balance of the Buydown Mortgage Loan, the Company
shall distribute to the Purchaser on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
|
Section
4.21
|
Notification
of Adjustments.
|
With
respect to each adjustable rate
Mortgage Loan, the Company shall adjust the Mortgage Interest Rate on the
related Interest Rate Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The
Company shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. Upon the discovery by the
Company or the receipt of notice from the Purchaser that the Company has failed
to adjust a Mortgage Interest Rate in accordance with the terms of the related
Mortgage Note, the Company shall immediately deposit in the Custodial Account
from its own funds the amount of any interest loss or deferral caused the
Purchaser thereby.
|
Section
4.22
|
Confidentiality/Protection
of Customer Information.
|
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary for
the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies. Each party agrees that it shall comply with all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity
of
Customer Information, including maintaining security measures designed to meet
the Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 66 Fed. Reg. 8616 (the “Interagency Guidelines”). For
purposes of this Section 4.22, the term “Customer Information” shall have the
meaning assigned to it in the Interagency Guidelines.
|
Section
4.23
|
Fair
Credit Reporting Act
|
The
Company, in its capacity as servicer for each Mortgage Loan, agrees to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly
basis.
|
Section
4.24
|
Establishment
of and Deposits to Subsidy
Account.
|
The
Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of residential Mortgage Loans, and various Mortgagors.” The Subsidy
Account shall be an eligible deposit account established with an eligible
institution.
The
Company shall, from time to time, withdraw funds from the Subsidy Account for
the following purposes:
|
|
(i)
|
to
deposit in the Custodial Account in the amounts and in the manner
provided
for in Section 4.04(xi);
|
|
|
(ii)
|
to
transfer funds to another eligible institution in accordance with
Section
4.09 hereof;
|
|
(iii)
|
to
withdraw funds deposited in error;
and
|
|
|
(iv)
|
to
clear and terminate the Subsidy Account upon the termination of this
Agreement.
|
Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Subsidy Account to the extent that the Company can
separately identify any Subsidy Funds deposited therein.
|
Section
4.25
|
Use
of Subservicers and
Subcontractors.
|
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (a) of this Section 4.25. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor,
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section 4.25.
(a) It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subservicer. The Company
shall cause any Subservicer used by the Company (or by any Subservicer) for
the
benefit of the Purchaser and any Depositor to comply with the provisions of
this
Section 4.25 and with Sections 6.04, 6.06, 9.01(e)(iii), 9.01(e)(v) and 9.01(f)
of this Agreement to the same extent as if such Subservicer were the Company,
and to provide the information required with respect to such Subservicer under
Section 9.01(e)(iv) of this Agreement. The Company shall be
responsible for obtaining from each Subservicer and delivering to the Purchaser
and any Depositor any servicer compliance statement required to be delivered
by
such Subservicer under Section 6.04 and any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 6.06
and
any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 6.06 as and
when required to be delivered.
(b) It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subcontractor. The Company
shall promptly upon request provide to the Purchaser and any Depositor (or
any
designee of the Depositor, such as a master servicer or administrator) a written
description (in form and substance satisfactory to the Purchaser and such
Depositor) of the role and function of each Subcontractor utilized by the
Company or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause
(ii)
of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(f) of this
Agreement to the same extent as if such Subcontractor were the
Company. The Company shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any assessment
of compliance and attestation required to be delivered by such Subcontractor
under Section 6.06, in each case as and when required to be
delivered.
ARTICLE
V
PAYMENTS
TO PURCHASER
|
Section
5.01
|
Remittances.
|
On
each Remittance Date the Company
shall remit by wire transfer of immediately available funds to the Purchaser
(a)
all amounts deposited in the Custodial Account as of the close of business
on
the Determination Date (net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05), plus (b) all amounts, if any, which the
Company is obligated to distribute pursuant to Section 5.03, minus (c) any
amounts attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 4.04(viii); minus (d) any amounts attributable to
Monthly Payments collected but due on a Due Date or Dates subsequent to the
first day of the month of the Remittance Date, and minus (e) any
amounts attributable to Buydown Funds being held in the Custodial Account,
which
amounts shall be remitted on the Remittance Date next succeeding the Due Period
for such amounts.
With
respect to any remittance received
by the Purchaser after the Business Day on which such payment was due, the
Company 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 three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall cover the period
commencing with the day following the Business Day such payment was due and
ending with the Business Day on which such payment is made to the Purchaser,
both inclusive. Such interest shall be remitted by wire transfer of
immediately available funds within one Business Day following agreement by
the
Purchaser and the Company of the penalty amount. The payment by the Company
of
any such interest shall not be deemed an extension of time for payment or a
waiver of any Event of Default by the Company.
|
Section
5.02
|
Statements
to Purchaser.
|
Not
later than the Remittance Date, the
Company shall furnish to the Purchaser a monthly remittance advice in the
standard form of electronic Alltel® file, as to the period ending on the last
day of the preceding month. If requested by the Purchaser prior to
the related Closing Date, the first monthly remittance advice due to the
Purchaser following such Closing Date shall be furnished by the 12th calendar
day, or
if such day is not a Business Day, then the preceding Business Day.
|
Section
5.03
|
Monthly
Advances by Company.
|
On
the Business Day immediately
preceding each Remittance Date, the Company shall deposit in the Custodial
Account from its own funds or from amounts held for future distribution an
amount equal to all Monthly Payments (with interest adjusted to the Mortgage
Loan Remittance Rate) which were due on the Mortgage Loans during the applicable
Due Period and which were delinquent at the close of business on the immediately
preceding Determination Date or which were deferred pursuant to Section
4.01. Any amounts held for future distribution and so used shall be
replaced by the Company by deposit in the Custodial Account on or before any
future Remittance Date if funds in the Custodial Account on such Remittance
Date
shall be less than payments to the Purchaser required to be made on such
Remittance Date. The Company's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly Payment
due prior to the payment in full of the Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including REO Disposition
Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that such obligation shall cease if the
Company determines, in its sole reasonable opinion, that advances with respect
to such Mortgage Loan are non-recoverable by the Company from Liquidation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, Condemnation Proceeds,
or otherwise with respect to a particular Mortgage Loan. In the event
that the Company determines that any such advances are non-recoverable, the
Company shall provide the Purchaser with a certificate signed by two officers
of
the Company evidencing such determination.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01
|
Transfers
of Mortgaged Property.
|
The
Company shall use its best efforts
to enforce any "due-on-sale" provision contained in any Mortgage or Mortgage
Note and to deny assumption by the Person to whom the Mortgaged Property has
been or is about to be sold whether by absolute conveyance or by contract of
sale, and whether or not the Mortgagor remains liable on the Mortgage and the
Mortgage Note. When the Mortgaged Property has been conveyed by the
Mortgagor, the Company shall, to the extent it has knowledge of such conveyance,
immediately notify the Purchaser and exercise its rights to accelerate the
maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights
if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related PMI Policy, if
any.
If
the Company reasonably believes it
is unable under applicable law to enforce such "due-on-sale" clause, the Company
shall enter into (i) an assumption and modification agreement with the Person
to
whom such property has been conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and the original Mortgagor remains liable thereon
or (ii) in the event the Company is unable under applicable law to require
that
the original Mortgagor remain liable under the Mortgage Note and the Company
has
the prior consent of the primary mortgage guaranty insurer, a substitution
of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. If an assumption fee is collected by the Company for
entering into an assumption agreement the fee will be retained by the Company
as
additional servicing compensation. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan, the outstanding principal amount of the
Mortgage Loan nor any other materials terms shall be changed without Purchaser’s
consent.
To
the extent that any Mortgage Loan is
assumable, the Company shall inquire diligently into the credit worthiness
of
the proposed transferee, and shall use the underwriting criteria for approving
the credit of the proposed transferee which are used with respect to
underwriting mortgage loans of the same type as the Mortgage
Loans. If the credit of the proposed transferee does not meet such
underwriting criteria, the Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan.
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Loan
Documents.
|
Upon
the payment in full of any
Mortgage Loan, or the receipt by the Company of a notification that payment
in
full will be escrowed in a manner customary for such purposes, the Company
shall
notify the Purchaser in the Monthly Remittance Advice as provided in Section
5.02, and may request the release of any Mortgage Loan Documents.
If
the Company satisfies or releases a
Mortgage without first having obtained payment in full of the indebtedness
secured by the Mortgage or should the Company otherwise prejudice any rights
the
Purchaser may have under the mortgage instruments, upon written demand of the
Purchaser, the Company shall repurchase the related Mortgage Loan at the
Repurchase Price by deposit thereof in the Custodial Account within 2 Business
Days of receipt of such demand by the Purchaser. The Company shall
maintain the Fidelity Bond and Errors and Omissions Insurance Policy as provided
for in Section 4.12 insuring the Company against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
|
Section
6.03
|
Servicing
Compensation.
|
As
compensation for its services
hereunder, the Company shall be entitled to withdraw from the Custodial Account
or to retain from interest payments on the Mortgage Loans the amount of its
Servicing Fee. The Servicing Fee shall be payable monthly and shall
be computed on the basis of the outstanding principal balance and for the period
respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is
limited to, and payable solely from, the interest portion of such Monthly
Payments.
Additional
servicing compensation in
the form of assumption fees, to the extent provided in Section 6.01, and late
payment charges shall be retained by the Company to the extent not required
to
be deposited in the Custodial Account. The Company shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof except as
specifically provided for herein.
|
Section
6.04
|
Annual
Statements as to Compliance.
|
(i) The
Company shall deliver to the Purchaser, on or before February 28, 2006, an
Officer's Certificate, stating that (x) a review of the activities of the
Company during the preceding calendar year and of performance under this
Agreement or similar agreements has been made under such officer's supervision,
and (y) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such
default.
(ii) On
or before March 1 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Company, to the effect that (a) a review of the Company’s activities during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (b) to
the best of such officers’ knowledge, based on such review, the Company has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
|
Section
6.05
|
Annual
Independent Public Accountants' Servicing
Report.
|
Except
with respect to Securitization
Transactions occurring on or after January 1, 2006, on or before February 28,
2006, the Company, 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 each Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing of
the
mortgage loans similar in nature and that such firm is of the opinion that
the
provisions of this or similar agreements have been complied with, and
that, on the basis of such examination conducted substantially in compliance
with the Single Attestation Program for Mortgage Bankers, nothing has come
to
their attention which would indicate that such servicing has not been conducted
in compliance therewith, 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. By providing Purchaser a copy of a Uniform Single
Attestation Program Report from their independent public accountant's on an
annual basis, Company shall be considered to have fulfilled its obligations
under this Section 6.05.
|
Section
6.06
|
Report
on Assessment of Compliance and
Attestation.
|
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction occurring on or before March 1 of each calendar year, commencing
in
2007, the Company shall:
|
(i)
|
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor) regarding
the
Company’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Purchaser and such Depositor and
signed
by an authorized officer of the Company and shall address each of
the
Servicing Criteria specified on a certification substantially in
the form
of Exhibit D hereto;
|
|
(ii)
|
deliver
to the Purchaser and any Depositor a report of a registered public
accounting firm reasonably acceptable to the Purchaser and such Depositor
that attests to, and reports on, the assessment of compliance made
by the
Company and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of
Regulation S-X under the Securities Act and the Exchange
Act;
|
|
(iii)
|
cause
each Subservicer and each Subcontractor, determined by the Company
pursuant to Section 425(b) to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser and such Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this
Section
6.06; and
|
|
(iv)
|
deliver
to the Purchaser, any Depositor and any other Person that will be
responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant
to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction
a
certification in the form attached hereto as Exhibit
E.
|
The
Company acknowledges that the parties identified in clause (iv) above may rely
on the certification provided by the Company pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission.
|
Section
6.07
|
Remedies.
|
(i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article 9, Section 6.04,
Section 6.05 or Section 6.06, or any breach by the Company of a representation
or warranty set forth in Section 9.01(e)(iv)(A), or in a writing furnished
pursuant to Section 9.01(e)(iv)(B) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such breach
is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(e)(iv)(B) to the extent made as of a date subsequent to such closing date,
shall, except as provided in sub-clause (ii) of this Section, immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Company; provided that to the extent than any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of
the
Company as servicer, such provision shall be given effect.
(ii) Any
failure by the Company, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 6.04, Section 6.05 or Section 6.06, including any failure by
the
Company to identify any Subcontract “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, which continues unremedied
for
ten (10) calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Company under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Company under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Company; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(iii) The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as servicer and the transfer of servicing of the Mortgage Loans to
a
successor servicer. The provisions of this paragraph shall not limit
whatever rights the Purchaser or any Depositor may have under other provisions
of this Agreement and/or any applicable Reconstitution Agreement or otherwise,
whether in equity or at law, such as an action for damages, specific performance
or injunctive relief.
|
Section
6.08
|
Right
to Examine Company Records.
|
The
Purchaser, or its designee, shall
have the right to examine and audit any and all of the books, records, or other
information of the Company, whether held by the Company or by another on its
behalf, with respect to or concerning this Agreement or the Mortgage Loans,
during business hours or at such other times as may be reasonable under
applicable circumstances, upon reasonable advance notice. The
Purchaser shall pay its own expenses associated with such
examination.
|
Section
6.09
|
Compliance
with REMIC Provisions.
|
If
a REMIC election has been made with
respect to the arrangement under which the Mortgage Loans and REO Property
are
held, the Company shall not take any action, cause the REMIC to take any action
or fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on “prohibited transactions” as
defined Section 860(a)(2) of the Code and the tax on “contributions” to a REMIC
set forth in Section 860(d) of the Code) unless the Company has received an
Opinion of Counsel (at the expense of the party seeking to take such action)
to
the effect that the contemplated action will not endanger such REMIC status
or
result in the imposition of any such tax.
ARTICLE
VII
COMPANY
TO COOPERATE
|
Section
7.01
|
Provision
of Information.
|
During
the term of this Agreement, the
Company shall furnish to the Purchaser such periodic, special, or other reports
or information, and copies or originals of any documents contained in the
Servicing File for each Mortgage Loan provided for herein. All other
special reports or information not provided for herein as shall be necessary,
reasonable, or appropriate with respect to the Purchaser or any regulatory
agency will be provided at the Purchaser’s expense. All such reports,
documents or information shall be provided by and in accordance with all
reasonable instructions and directions which the Purchaser may
give.
The
Company shall execute and deliver
all such instruments and take all such action as the Purchaser may reasonably
request from time to time, in order to effectuate the purposes and to carry
out
the terms of this Agreement.
|
Section
7.02
|
Financial
Statements; Servicing Facility.
|
In
connection with marketing the
Mortgage Loans, the Purchaser may make available to a prospective Purchaser
a
Consolidated Statement of Operations of the Company for the most recently
completed two (2) fiscal years for which such a statement is available, as
well
as a Consolidated Statement of Condition at the end of the last two fiscal
years
covered by such Consolidated Statement of Operations. The Company
also shall make available any comparable interim statements to the extent any
such statements have been prepared by or on behalf of the Company (and are
available upon request to members or stockholders of the Company or to the
public at large).
The
Company also shall make available
to Purchaser or prospective Purchaser a knowledgeable financial or accounting
officer for the purpose of answering questions respecting recent developments
affecting the Company or the financial statements of the Company, and to permit
any prospective purchaser to inspect the Company's servicing facilities for
the
purpose of satisfying such prospective purchaser that the Company has the
ability to service the Mortgage Loans as provided in this
Agreement.
ARTICLE
VIII
THE
COMPANY
|
Section
8.01
|
Indemnification;
Third Party Claims.
|
The
Company shall indemnify the
Purchaser and hold it harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Purchaser
may
sustain in any way related to the failure of the Company to perform its duties
and service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company immediately shall notify the Purchaser if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans, assume (with the prior written consent of the Purchaser) the defense
of
any such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which
may
be entered against it or the Purchaser in respect of such claim. The
Company shall follow any written instructions received from the Purchaser in
connection with such claim. The Purchaser promptly shall reimburse
the Company for all amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way related to the Company's indemnification
pursuant to Section 3.03, or the failure of the Company to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement.
|
Section
8.02
|
Merger
or Consolidation of the
Company.
|
The
Company shall keep in full effect
its existence, rights and franchises and shall obtain and preserve its
qualification to do business 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 Company may
be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Company shall be a party, or any Person
succeeding to the business of the Company, shall be the successor of the Company
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 which is a Xxxxxx Xxx/Xxxxxxx Mac-approved company in good
standing and has a net worth of no less than $25
million. Furthermore, in the event the Company transfers or otherwise
disposes of all or substantially all of its assets to an affiliate of the
Company, such affiliate shall satisfy the condition above, and shall also be
fully liable to the Purchaser for all of the Company's obligations and
liabilities hereunder.
|
Section
8.03
|
Limitation
on Liability of Company and
Others.
|
Neither
the Company nor any of the
directors, officers, employees or agents of the Company 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, provided, however, that this provision shall not protect the Company
or any such Person against any breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement or any other liability which would
otherwise be imposed under this Agreement. The Company and any
director, officer, employee or agent of the Company may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Company 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 opinion may involve it in any
expense or liability, provided, however, that the Company may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the Company shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such
action.
|
Section
8.04
|
Limitation
on Resignation and Assignment by
Company.
|
The
Purchaser has entered into this
Agreement with the Company and subsequent Purchaser will purchase the Mortgage
Loans in reliance upon the independent status of the Company, and the
representations as to the adequacy of its servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing, and the continuance thereof. Therefore, the Company shall
neither assign this Agreement or the servicing rights hereunder or delegate
its
rights or duties hereunder (other than pursuant to Section 4.01) or any portion
hereof or sell or otherwise dispose of all of its property or assets without
the
prior written consent of the Purchaser, which consent shall not be unreasonably
withheld.
The
Company shall not resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Company 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 Company. Any such determination permitting the
resignation of the Company 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 Company's
responsibilities and obligations hereunder in the manner provided in Section
12.01.
Without
in any way limiting the
generality of this Section 8.04, in the event that the Company either shall
assign this Agreement or the servicing responsibilities hereunder or delegate
its duties hereunder (other than pursuant to Section 4.01) or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, without the prior written consent of the Purchaser, then the
Purchaser shall have the right to terminate this Agreement upon notice given
as
set forth in Section 10.01, without any payment of any penalty or damages and
without any liability whatsoever to the Company or any third party.
ARTICLE
IX
SECURITIZATION
TRANSACTIONS; WHOLE LOAN TRANSFERS AND AGENCY TRANSFERS
|
Section
9.01
|
Securitization
Transactions; Whole Loan Transfers and Agency
Transfers
|
The
Purchaser and the Company agree
that with respect to some or all of the Mortgage Loans, the Purchaser, at its
sole option, may effect Whole Loan Transfers, Agency Transfer or Securitization
Transactions, retaining the Company as the servicer thereof or subservicer
if a
master servicer is employed, or as applicable the "seller/servicer." On the
Reconstitution Date, the Mortgage Loans transferred may cease to be covered
by
this Agreement; provided, however, that, in the event that any Mortgage Loan
transferred pursuant to this Section 9.01 is rejected by the transferee, the
Company shall continue to service such rejected Mortgage Loan on behalf of
the
Purchaser in accordance with the terms and provisions of this
Agreement.
The
Company shall cooperate with the
Purchaser in connection with each Whole Loan Transfer, Agency Transfer or
Securitization Transaction in accordance with this Section 9.01. In
connection therewith:
|
|
(a)
|
the
Company shall make all representations and warranties with respect
to the
Mortgage Loans as of the related Closing Date and with respect to
the
Company itself as of the closing date of each Whole Loan Transfer,
Agency
Transfer or Securitization
Transaction;
|
|
|
(b)
|
the
Company shall negotiate in good faith and execute any seller/servicer
agreements required to effectuate the foregoing provided such agreements
create no greater obligation or cost on the part of the Company than
otherwise set forth in this
Agreement;
|
|
|
(c)
|
the
Company shall provide as
applicable:
|
|
|
(i)
|
any
and all information and appropriate verification of information which
may
be reasonably available to the Company, whether through letters of
its
auditors and counsel or otherwise, as the Purchaser shall
request;
|
|
(ii)
|
such
additional representations, warranties, covenants, opinions of counsel,
letters from auditors, and certificates of public officials or officers
of
the Company as are reasonably believed necessary by the trustee,
any
Rating Agency or the Purchaser, as the case may be, in connection
with
such Whole Loan Transfers, Agency Transfers or Securitization
Transactions. The Purchaser shall pay all third party costs
associated with the preparation of such information. The
Company shall execute any seller/servicer agreements required within
a
reasonable period of time after receipt of such seller/servicer agreements
which time shall be sufficient for the Seller and Seller's counsel
to
review such seller/servicer agreements. Under this Agreement, the
Company
shall retain a Servicing Fee for each Mortgage Loan, at no less than
the
applicable Servicing Fee Rate; and
|
|
(iii)
|
at
any time as required by any Rating Agency, such additional documents
from
the related Retained Mortgage File to the Custodian as may be required
by
such Rating Agency;
|
|
(d)
|
the
Company shall with respect to any Mortgage Loans that are subject
to a
Securitization Transaction occurring on or before December 31, 2005,in
which the filing of a Xxxxxxxx-Xxxxx Certification directly with
the
Commission is required, by February 28, 2006, or in connection with
any
additional Xxxxxxxx-Xxxxx Certification required to be filed upon
thirty
(30) days written request, an officer of the Company shall execute
and
deliver an Officer’s Certification substantially in the form attached
hereto as Exhibit F, to the entity filing the Xxxxxxxx-Xxxxx Certification
directly with the Commission (such as the Purchaser, any master servicer,
any trustee or any depositor) for the benefit of such entity and
such
entity’s affiliates and the officers, directors and agents of such entity
and such entity’s affiliates, and shall indemnify such entity or persons
arising out of any breach of Company’s obligations or representations
relating thereto as provided in such Officer’s
Certification.
|
|
|
(e)
|
the
Company shall, in connection with any Securitization Transaction
occurring
on or after January 1, 2006, the Company shall (1) within five (5)
Business Days following request by the Purchaser or any Depositor,
provide
to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator and each Subservicer to provide), in writing
and in
form and substance reasonably satisfactory to the Purchaser and such
Depositor, the information and materials specified in paragraphs
(i),
(ii), (iii) and (vii) of this subsection (e), and (2) as promptly
as
practicable following notice to or discovery by the Company, provide
to
the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this subsection
(e).
|
|
|
(i)
|
if
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding (1) the Company, as originator of the
Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and (3) as applicable,
each Subservicer, as is requested for the purpose of compliance with
Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
|
|
|
(A)
|
the
originator’s form of organization;
|
|
|
(B)
|
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the
Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in the
good
faith judgment of the Purchaser, to an analysis of the performance
of the
Mortgage Loans, including the originators’ credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage Loans
and
such other information as the Purchaser or any Depositor may reasonably
request for the purpose of compliance with Item 1110(b)(2) of Regulation
AB;
|
|
|
(C)
|
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Company, each Third-Party Originator
and each Subservicer; and
|
|
|
(D)
|
a
description of any affiliation or relationship between the Company,
each
Third-Party Originator, each Subservicer and any of the following
parties
to a Securitization Transaction, as such parties are identified to
the
Company by the Purchaser or any Depositor in writing in advance of
a
Securitization Transaction:
|
|
|
(1)
|
the
sponsor;
|
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
|
|
(ii)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
(or, as applicable, cause each Third-Party Originator to provide)
Static
Pool Information with respect to the mortgage loans (of a similar
type as
the Mortgage Loans, as reasonably identified by the Purchaser as
provided
below) originated by (1) the Company, if the Company is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), and/or (2) each Third-Party
Originator. Such Static Pool Information shall be prepared by
the Company (or Third-Party Originator) on the basis of its reasonable,
good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of
Regulation AB. To the extent that there is reasonably available
to the Company (or Third-Party Originator) Static Pool Information
with
respect to more than one mortgage loan type, the Purchaser or any
Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The
content of such Static Pool Information may be in the form customarily
provided by the Company, and need not be customized for the Purchaser
or
any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall
be
presented in increments no less frequently than quarterly over the
life of
the mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic increment must be as
of a date no later than 135 days prior to the date of the prospectus
or
other offering document in which the Static Pool Information is to
be
included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides
a
permanent record of the information provided, such as a portable
document
format (pdf) file, or other such electronic format reasonably required
by
the Purchaser or the Depositor, as
applicable.
|
If
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and agreed-upon
procedures letters of certified public accountants reasonably acceptable to
the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Company’s or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to
and be for the benefit of such parties as the Purchaser or such Depositor shall
designate, which may include, by way of example, any sponsor, any Depositor
and
any broker dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
|
|
(iii)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer, for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108 of Regulation AB. Such information
shall
include, at a minimum:
|
|
|
(A)
|
the
Servicer’s form of organization;
|
|
|
(B)
|
a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the
Mortgage
Loans and information on factors related to the Servicer that may
be
material, in the good faith judgment of the Purchaser or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
|
|
|
(1)
|
whether
any prior securitizations of mortgage loans of a type similar to
the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding the
related
Securitization Transaction;
|
|
|
(2)
|
the
extent of outsourcing the Servicer
utilizes;
|
|
|
(3)
|
whether
there has been previous disclosure of material noncompliance with
the
applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as a servicer during
the
three-year period immediately preceding the related Securitization
Transaction;
|
|
|
(4)
|
whether
the Servicer has been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application
of a servicing performance test or trigger;
and
|
|
|
(5)
|
such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
|
|
|
(C)
|
a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage
Loans;
|
|
|
(D)
|
information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance involving
the Servicer could have a material adverse effect on the performance
by
the Company of its servicing obligations under this Agreement or
any
Reconstitution Agreement;
|
|
|
(E)
|
information
regarding advances made by the Servicer on the Mortgage Loans and
the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all advances
required to be made on residential mortgage loans serviced by it
during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and
the reasons for such failure to
advance;
|
|
|
(F)
|
a
description of the Servicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
|
|
|
(G)
|
a
description of the Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation
of
mortgaged properties, sale of defaulted mortgage loans or workouts;
and
|
|
|
(H)
|
information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with
respect to delinquency and loss
experience.
|
|
|
(iv)
|
If
so requested by the Purchaser or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect
to
any class of asset-backed securities, the Company shall (or shall
cause
each Subservicer and Third-Party Originator to) (1) notify the Purchaser
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Company, any Subservicer
or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company, any Subservicer or any Third-Party Originator and any
of the
parties specified in Section 9.01(e)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (2) provide to the Purchaser and
any
Depositor a description of such proceedings, affiliations or
relationships.
|
|
|
(v)
|
As
a condition to the succession to the Company or any Subservicer as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as a successor
to the Company or any Subservicer, the Company shall provide to the
Purchaser and any Depositor, at least 15 calendar days prior to the
effective date of such succession or appointment, (x) written notice
to
the Purchaser and any Depositor of such succession or appointment
and (y)
in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with is reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
|
|
|
(vi)
|
(A)
|
The
Company shall represent to the Purchaser, as of the date on which
information is first provided to the Purchaser under this Section
9.01(e)
that, except as disclosed in writing to the Purchaser prior to such
date:
(1) the Company is not aware and has not received notice that any
default,
early amortization or other performance triggering event has occurred
as
to any other securitization due to any act or failure to act of the
Company; (2) the Company has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger;
(3)
no material noncompliance with the applicable servicing criteria
with
respect to other securitizations of residential mortgage loans involving
the Company as servicer has been disclosed or reported by the Company;
(4)
no material changes to the Company’s policies or procedures with respect
to the servicing function it will perform under this Agreement and
any
Reconstitution Agreement for mortgage loans of a type similar to
the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there are no
aspects
of the Company’s financial condition that could have a material adverse
effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (6) there are
no
material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any Third-Party
Originator; and (7) there are no affiliations, relationships or
transactions relating to the Company, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any
party
thereto identified by the related Depositor of a type described in
Item
1119 of Regulation AB.
|
|
|
(B)
|
If
so requested by the Purchaser on any date following the date on which
information is first provided to the Purchaser under this Section
9.01(e),
the Company shall, within five (5) Business Days following such request,
confirm in writing the accuracy of the representations and warranties
set
forth in sub clause (A) above or, if any such representation and
warranty
is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
|
|
|
(vii)
|
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if so requested
by
the Purchaser or any Depositor, the Company shall provide such information
reasonably available to the Company regarding the performance of
the
Mortgage Loans as is reasonably required to facilitate preparation
of
distribution reports in accordance with Item 1121 of Regulation
AB.
|
|
|
(f)
|
the
Company shall indemnify the Purchaser, each affiliate of the Purchaser,
and each of the following parties participating in a Securitization
Transaction; each sponsor and issuing entity; each Person responsible
for
the preparation, execution or filing of any report required to be
filed
with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement
agent or
initial purchaser, each Person who controls any of such parties or
the
Depositor (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing
and of
the Depositor, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based
upon:
|
|
|
(i)
|
(A)
|
any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided under Sections 9.01(c) and (e) by or on behalf
of the
Company, or provided under Sections 9.01(c) and (e) by or on behalf
of any
Subservicer, Subcontractor or Third-Party Originator (collectively,
the
“Company Information”), or (B) the omission or alleged omission to state
in the Company Information a material fact required to be stated
in the
Company Information or necessary in order to make the statements
therein,
in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of
this paragraph shall be construed solely by reference to the Company
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether
the
Company Information or any portion thereof is presented together
with or
separately from such other
information;
|
|
(ii)
|
any
failure by the Company, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under Sections
9.01(c) and (e), including any failure by the Company to identify
any
Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB; or
|
|
(iii)
|
any
breach by the Company of a representation or warranty set forth in
Section
9.01(e)(iv)(A) or in a writing furnished pursuant to Section
9.01(e)(iv)(B) and made as of a date prior to the closing date of
the
related Securitization Transaction, to the extent that such breach
is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(e)(iv)(B) to the extent made as of a date subsequent to such
closing
date.
|
In
the
case of any failure of performance described in sub-clause (ii) of this Section
9.01(f), the Company shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
|
|
(g)
|
the
Purchaser and each Person who controls the Purchaser shall indemnify
the
Company, each affiliate of the Company, each Person who controls
any of
such parties or the Company (within the meaning of Section 15 of
the
Securities Act and Section 20 of the Exchange Act) and the respective
present and former directors, officers, employees and agents of each
of
the foregoing and of the Company, and shall hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures,
legal
fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain arising out of or based
upon:
|
|
|
(i)
|
(A)
|
any
untrue statement of a material fact contained or alleged to be contained
in any offering materials related to a Securitization Transaction,
including without limitation the registration statement, prospectus,
prospectus supplement, any private placement memorandum, any offering
circular, any computational materials, and any amendments or supplements
to the foregoing (collectively, the “Securitization Materials”) or (B) the
omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials
or
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, but only
to the
extent that such untrue statement or alleged untrue statement or
omission
or alleged omission is other than a statement or omission arising
out of,
resulting from, or based upon the Company
Information.
|
The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.01(e) is to facilitate compliance by the Purchaser and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the
Commission. Neither the Purchaser nor any Depositor shall exercise
its right to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than compliance
with
the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder. The Company acknowledges that interpretations
of the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Company shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Company, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
In
the event the Purchaser has elected
to have the Company hold record title to the Mortgages, prior to the
Reconstitution Date the Company shall prepare an Assignment of Mortgage in
blank
or to the trustee from the Company acceptable to the trustee for each Mortgage
Loan that is part of the Whole Loan Transfers, Agency Transfer or Securitization
Transactions. The Company shall pay all preparation and recording
costs associated with the initial Assignment of Mortgage. The Company
shall execute each Assignment of Mortgage, track such Assignments of Mortgage
to
ensure they have been recorded and deliver them as required by the trustee
upon
the Company's receipt thereof. Additionally, the Company shall
prepare and execute, at the direction of the Purchaser, any note endorsements
in
connection with any and all seller/servicer agreements. If required
at any time by a Rating Agency, Purchaser or successor purchaser in connection
with any Whole Loan Transfer, Agency Sale or Securitization Transaction, the
Company shall deliver such additional documents from its Retained Mortgage
File
within thirty (30) Business Days to the Custodian, successor purchaser or other
designee of the Purchaser as said Rating Agency, Purchaser or successor
purchaser may require.
All
Mortgage Loans (i) not sold or
transferred pursuant to Whole Loan Transfers, Agency Transfer or Securitization
Transactions or (ii) that are subject to a Securitization for which the related
trust is terminated for any reason, 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
X
DEFAULT
|
Section
10.01
|
Events
of Default.
|
Each
of the following shall constitute
an Event of Default on the part of the Company:
|
|
(i)
|
any
failure by the Company to remit to the Purchaser any payment required
to
be made under the terms of this Agreement which continues unremedied
for a
period of two Business Days after the date upon which written notice
of
such failure, requiring the same to be remedied, shall have been
given to
the Company by the Purchaser; or
|
|
|
(ii)
|
failure
by the Company duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Company set
forth
in this Agreement or in the Custodial Agreement which continues unremedied
for a period of 90 days after the date on which written notice of
such
failure, requiring the same to be remedied, shall have been given
to the
Company by the Purchaser or by the Custodian;
or
|
|
|
(iii)
|
failure
by the Company to maintain its license to do business in any jurisdiction
where the Mortgaged Property is located if such license is required;
or
|
|
|
(iv)
|
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, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for
the
winding-up or liquidation of its affairs, shall have been entered
against
the Company and such degree or order shall have remained in force
undischarged or unstayed for a period of 60 days;
or
|
|
|
(v)
|
the
Company shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of
assets
and liabilities or similar proceedings of or relating to the Company
or of
or relating to all or substantially all of its property;
or
|
|
|
(vi)
|
the
Company 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, bankruptcy or reorganization statute, make an assignment
for
the benefit of its creditors, voluntarily suspend payment of its
obligations or cease its normal business operations;
or
|
|
|
(vii)
|
the
Company ceases to meet the qualifications of a Xxxxxx Xxx/Xxxxxxx
Mac
servicer; or
|
|
(viii)
|
the
Company attempts to assign its right to servicing compensation hereunder
or to assign this Agreement or the servicing responsibilities hereunder
or
to delegate its duties hereunder or any portion thereof in violation
of
Section 8.04.
|
In
each and every such case, so long as
an Event of Default shall not have been remedied, in addition to whatever rights
the Purchaser may have at law or equity to damages, including injunctive relief
and specific performance, the Purchaser, by notice in writing to the Company,
may terminate all the rights and obligations of the Company under this Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon
receipt by the Company of such
written notice, all authority and power of the Company 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 any Purchaser, the Company shall prepare, execute and
deliver to the successor entity designated by the Purchaser any and all
documents and other instruments, place in such successor's possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer and endorsement or assignment of the Mortgage
Loans and related documents, at the Company's sole expense. The
Company shall cooperate with the Purchaser and such successor in effecting
the
termination of the Company'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 Company to the
Custodial Account, Subsidy Account or Escrow Account or thereafter received
with
respect to the Mortgage Loans.
|
Section
10.02
|
Waiver
of Defaults.
|
By
a written notice, the Purchaser may
waive any default by the Company in the performance of its obligations hereunder
and its consequences. Upon any 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.
ARTICLE
XI
TERMINATION
|
Section
11.01
|
Termination.
|
This
Agreement shall terminate upon
either: (i) the later of the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan or the disposition
of any REO Property with respect to the last Mortgage Loan and the remittance
of
all funds due hereunder; or (ii) mutual consent of the Company and the Purchaser
in writing.
|
Section
11.02
|
Termination
Without Cause.
|
The
Purchaser may terminate, at its
sole option, any rights the Company may have hereunder, without cause as
provided in this Section 11.02. Any such notice of termination shall
be in writing and delivered to the Company by registered mail as provided in
Section 12.05.
The
Company shall be entitled to
receive, as such liquidated damages, upon the transfer of the servicing rights,
an amount equal to: (i) 2.75% of the aggregate outstanding
principal amount of the Mortgage Loans as of the termination date paid by the
Purchaser to the Company with respect to all of the Mortgage Loans for which
a
servicing fee rate of .25% is paid per annum, (ii) 3.25% of the
aggregate outstanding principal amount of the Mortgage Loans as of the
termination date paid by the Purchaser to the Company with respect to all of
the
Mortgage Loans for which a servicing fee rate of .375% is paid per annum, and
(iii) 3.75% of the aggregate outstanding principal amount of the
Mortgage Loans as of the termination date paid by the Purchaser to the Company
with respect to all of the Mortgage Loans for which a servicing fee rate of
.44%
or greater is paid per annum.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01
|
Successor
to Company.
|
Prior
to termination of the Company's
responsibilities and duties under this Agreement pursuant to Sections 8.04,
10.01, 11.01 (ii) or 11.02 the Purchaser shall, (i) succeed to and assume all
of
the Company's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth
in
Section 8.02 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Company under this Agreement
prior to the termination of Company's responsibilities, duties and liabilities
under this Agreement. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Company's duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Company 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 Company
pursuant to the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 12.01 and shall in no
event relieve the Company of the representations and warranties made pursuant
to
Sections 3.01 and 3.02 and the remedies available to the Purchaser under Section
3.03, it being understood and agreed that the provisions of such Sections 3.01,
3.02, 3.03 and 8.01 shall be applicable to the Company notwithstanding any
such
sale, assignment, resignation or termination of the Company, or the termination
of this Agreement.
Any
successor appointed as provided
herein shall execute, acknowledge and deliver to the Company and to the
Purchaser an instrument accepting such appointment, wherein the successor shall
make the representations and warranties set forth in Section 3.01, except for
subsection (h) with respect to the sale of the Mortgage Loans and subsections
(i) and (k) thereof, whereupon such successor shall become fully vested with
all
the rights, powers, duties, responsibilities, obligations and liabilities of
the
Company, with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the Company or
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01 or 11.02
shall not affect any claims that any Purchaser may have against the Company
arising out of the Company's actions or failure to act prior to any such
termination or resignation.
The
Company shall deliver promptly to
the successor servicer the funds in the Custodial Account, Subsidy Account
and
Escrow Account and all Servicing Files and related documents and statements
held
by it hereunder and the Company shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of the
Company.
Upon
a successor's acceptance of
appointment as such, the Company shall notify by mail the Purchaser of such
appointment in accordance with the procedures set forth in Section
12.05.
|
Section
12.02
|
Amendment.
|
This
Agreement may be amended from time
to time by written agreement signed by the Company and the
Purchaser.
|
Section
12.03
|
Governing
Law.
|
This
Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Each
of the Company and the Purchaser
hereby knowingly, voluntarily and intentionally waives any and all rights it
may
have to a trial by jury in respect or any litigation based on, or arising out
of, under, or in connection with, this Agreement, or any other documents and
instruments executed in connection herewith, or any course of conduct, course
of
dealing, statements (whether oral or written), or actions of the Company or
the
Purchaser. This provision is a material inducement for the Purchaser
to enter into this Agreement.
|
Section
12.04
|
Duration
of Agreement.
|
This
Agreement shall continue in
existence and effect until terminated as herein provided. This
Agreement shall continue notwithstanding transfers of the Mortgage Loans by
the
Purchaser.
|
Section
12.05
|
Notices.
|
All
demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
|
(i)
|
if
to the Company with respect to servicing and investor reporting
issues:
|
Xxxxx
Fargo Bank, N.A.
1
Home Campus
Xxx
Xxxxxx,
Xxxx 00000-0000
Attention: Xxxx
X. Xxxxx,
MAC X2401-042
If
to the Company with respect to all
other issues:
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx,
XX 00000
Attention: Structured
Finance Manager, MAC X3906-012
In
each instance with a copy
to:
Xxxxx
Fargo Bank, N.A.
1
Home Campus
Xxx
Xxxxxx,
Xxxx 00000-0000
Attention: General
Counsel,
MAC X2401-06T
or
such other address as may hereafter
be furnished to the Purchaser in writingby the Company;
|
(ii)
|
if
to Purchaser:
|
EMC
Mortgage Corporation
Mac
Xxxxxx Xxxxx XX
000
Xxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxx
With
a
copy to:
Bear
Xxxxxxx Mortgage Capital Corp.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxxxxx
|
Section
12.06
|
Severability
of Provisions.
|
If
any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for
any
reason whatsoever, then such covenants, agreements, provisions or terms shall
be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability
of
the other provisions of this Agreement.
|
Section
12.07
|
Relationship
of Parties.
|
Nothing
herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto and the services of the Company shall be rendered as an independent
contractor and not as agent for the Purchaser.
|
Section
12.08
|
Execution;
Successors and Assigns.
|
This
Agreement may be executed in one
or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement. Subject to Section 8.04, this Agreement shall inure to the
benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns.
|
Section
12.09
|
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 at the Company's expense in the event
recordation is either necessary under applicable law or requested by the
Purchaser at its sole option.
|
Section
12.10
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right,
without the consent of the Company but subject to the limit set forth in Section
2.02 hereof, to assign, in whole or in part, its interest under this Agreement
with respect to some or all of the Mortgage Loans, and designate any person
to
exercise any rights of the Purchaser hereunder, by executing an Assignment,
Assumption and Recognition Agreement substantially in the form attached as
Exhibit G and the assignee or designee shall accede to the rights and
obligations hereunder of the Purchaser with respect to such Mortgage
Loans. All references to the Purchaser in this Agreement shall be
deemed to include its assignee or designee.
|
Section
12.11
|
Solicitation
of Mortgagor.
|
Neither
party shall, after the related Closing Date, take any action to solicit the
refinancing of any Mortgage Loan. It is understood and agreed that
neither (i) promotions undertaken by either party or any affiliate of either
party which are directed to the general public at large, including, without
limitation, mass mailings based upon commercially acquired mailing lists,
newspaper, radio, television advertisements nor (ii) serving the refinancing
needs of a Mortgagor who, without solicitation, contacts either party in
connection with the refinance of such Mortgage or Mortgage Loan, shall
constitute solicitation under this Section.
[Intentionally
Blank - Next Page Signature Page]
IN
WITNESS WHEREOF, the Company and the
Purchaser have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above
written.
|
EMC
MORTGAGE
CORPORATION Purchaser
|
XXXXX
FARGO BANK, N.A.
Company
|
|||
|
By:_______________________________
|
By:_______________________________
|
|||
|
Name:_____________________________
|
Name:_____________________________
|
|||
|
Title:______________________________
|
Title:______________________________
|
| STATE OF | ) | |
| ) | ss: | |
| COUNTY OF ___________ | ) |
On
the _____ day of _______________,
20___ before me, a Notary Public in and for said State, personally appeared,
known to me to be of Xxxxx Fargo Bank, N.A., the national banking association
that executed the within instrument and also known to me to be the person who
executed it on behalf of said bank, and acknowledged to me that such bank
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set
my hand affixed my office seal the day and year in this certificate first above
written.
| Notary Public | ||
| My Commission expires |
| STATE OF | ) | |
| ) | ss: | |
| COUNTY OF | ) |
On
the _____ day of _______________,
20___ before me, a Notary Public in and for said State, personally appeared
_____________________________________, known to me to be the
______________________________ of EMC Mortgage Corporation, the corporation
that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set
my hand affixed my office seal the day and year in this certificate first above
written.
| Notary Public | ||
| My Commission expires |
EXHIBIT
A
FORM
OF
ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
_____ day of __________, 20___, Xxxxx Fargo Bank, N.A. (the "Seller") as
the Seller under that certain Amended and Restated Master Mortgage Loan Purchase
Agreement, ("Purchase Agreement") and as the Company under that certain Amended
and Restated Master Seller's Warranties and Servicing Agreement (the "Servicing
Agreement") each dated as of _______________, 20___, (collectively, the
"Agreements") does hereby sell, transfer, assign, set over and convey to
EMC Mortgage Corporation as the Purchaser (the "Purchaser") under the
Purchase Agreement, and Purchaser hereby accepts from Seller, without recourse,
but subject to the terms of the Agreements, all right, title and interest of,
in
and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto
as Exhibit A, together with the Custodial Mortgage Files and Retained
Mortgage Files and all rights and obligations arising under the documents
contained therein. Pursuant to Section 2.03 of the Servicing
Agreement, the Seller has delivered to the Custodian the documents for each
Mortgage Loan to be purchased. The Servicing Files retained by the Seller
pursuant to Section 2.01 of the Servicing Agreement shall be appropriately
marked to clearly reflect the sale of the related Mortgage Loans to the
Purchaser.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreements.
|
EMC
Mortgage
Corporation
|
Xxxxx
Fargo Bank, N.A.
Company
|
|||
|
By:_______________________________
|
By:_______________________________
|
|||
|
Name:_____________________________
|
Name:_____________________________
|
|||
|
Title:______________________________
|
Title:______________________________
|
EXHIBIT
B
CUSTODIAL
AGREEMENT
EXHIBIT
C
CONTENTS
OF EACH RETAINED MORTGAGE FILE,
SERVICING
FILE AND CUSTODIAL MORTGAGE FILE
With
respect to each Mortgage Loan, the
Retained Mortgage File and Custodial Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be retained by the Company in the
Retained Mortgage File or Servicing File or delivered to the Custodian pursuant
to Sections 2.01 and 2.03 of the Seller's Warranties and the Servicing Agreement
to which this Exhibit is attached (the "Agreement"):
|
|
1.
|
The
original Mortgage Note bearing all intervening endorsements, endorsed
"Pay
to the order of without recourse" and signed in the name of
the Company by an authorized officer (in the event that the Mortgage
Loan
was acquired by the Company in a merger, the signature must be in
the
following form: "[Company], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired
or
originated by the Company while doing business under another name,
the
signature must be in the following form: "[Company], formerly
know as [previous name]").
|
|
|
2.
|
The
original of any guarantee executed in connection with the Mortgage
Note
(if any).
|
|
|
3.
|
The
original Mortgage, with evidence of recording thereon or a certified
true
and correct copy of the Mortgage sent for recordation. If in
connection with any Mortgage Loan, the Company cannot deliver or
cause to
be delivered the original Mortgage with evidence of recording thereon
on
or prior to the related Closing Date because of a delay caused by
the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such
public
recording office retains the original recorded Mortgage, the Company
shall
deliver or cause to be delivered to the Custodian, a photocopy of
such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate of the Company stating
that
such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage or
a copy
of such Mortgage certified by such public recording office to be
a true
and complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Company; or
(ii) in
the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost
after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete copy
of the
original recorded Mortgage.
|
Further,
with respect to MERS Mortgage Loans, (a) the Mortgage names MERS as the
Mortgagee and (b) the requirements set forth in the Electronic Tracking
Agreement have been satisfied, with a conformed recorded copy to follow as
soon
as the same is received by the Company.
|
|
4.
|
the
originals or certified true copies of any document sent for recordation
of
all assumption, modification, consolidation or extension agreements,
with
evidence of recording thereon.
|
|
|
5.
|
The
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording (except for the insertion of the
name
of the assignee and recording information). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary
under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located
or
on direction of the Purchaser as provided in the Custodial
Agreement. If the Assignment of Mortgage is to be recorded, the
Mortgage shall be assigned to the Purchaser. If the Assignment
of Mortgage is not to be recorded, the Assignment of Mortgage shall
be
delivered in blank. If the Mortgage Loan was acquired by the
Company in a merger, the Assignment of Mortgage must be made by
"[Company], successor by merger to [name of predecessor]." If
the Mortgage Loan was acquired or originated by the Company while
doing
business under another name, the Assignment of Mortgage must be by
"[Company], formerly know as [previous
name]."
|
|
|
6.
|
Originals
or certified true copies of documents sent for recordation of all
intervening assignments of the Mortgage with evidence of recording
thereon, or if any such intervening assignment has not been returned
from
the applicable recording office or has been lost or if such public
recording office retains the original recorded assignments of mortgage,
the Company shall deliver or cause to be delivered to the Custodian,
a
photocopy of such intervening assignment, together with (i) in the
case of
a delay caused by the public recording office, an Officer's Certificate
of
the Company stating that such intervening assignment of mortgage
has been
dispatched to the appropriate public recording office for recordation
and
that such original recorded intervening assignment of mortgage or
a copy
of such intervening assignment of mortgage certified by the appropriate
public recording office or by the title insurance company that issued
the
title policy to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to
the
Custodian upon receipt thereof by the Company; or (ii) in the case
of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
|
|
|
7.
|
The
electronic form of PMI Policy as identified by certificate
number.
|
|
|
8.
|
The
original mortgagee policy of title insurance or other evidence of
title
such as a copy of the title commitment or copy of the preliminary
title
commitment.
|
|
|
9.
|
Any
security agreement, chattel mortgage or equivalent executed in connection
with the Mortgage.
|
10. Original
power of attorney, if applicable.
|
|
11.
|
For
each Cooperative Loan, the original or a seller certified true copy
of the
following:
|
The
original Pledge Agreement entered into by the Mortgagor with respect to such
Cooperative Loan;
UCC-3
assignment in blank (or equivalent instrument), sufficient under the laws of
the
jurisdiction where the related Cooperative Apartment is located to reflect
of
record the sale and assignment of the Cooperative Loan to the
Purchaser;
Original
assignment of Pledge Agreement in blank showing a complete chain of assignment
from the originator of the related Cooperative Loan to the Company;
Original
Form UCC-1 and any continuation statements with evidence of filing thereon
with
respect to such Cooperative Loan;
Cooperative
Shares with a Stock Certificate in blank attached;
Original
Proprietary Lease;
Original
Assignment of Proprietary Lease, in blank, and all intervening assignments
thereof;
Original
recognition agreement of the interests of the mortgagee with respect to the
Cooperative Loan by the Cooperative, the stock of which was pledged by the
related Mortgagor to the originator of such Cooperative Loan; and
Originals
of any assumption, consolidation or modification agreements relating to any
of
the items specified above.
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company’s agent(s):
|
|
12.
|
The
original hazard insurance policy and, if required by law, flood insurance
policy, in accordance with Section 4.10 of the
Agreement.
|
|
|
13.
|
Residential
loan application.
|
|
|
14.
|
Mortgage
Loan closing statement.
|
|
|
15.
|
Verification
of employment and income, unless originated under the Company's Limited
Documentation program, Xxxxxx Mae Timesaver
Plus.
|
|
|
16.
|
Verification
of acceptable evidence of source and amount of down
payment.
|
|
|
17.
|
Credit
report on the Mortgagor.
|
|
|
18.
|
Residential
appraisal report.
|
|
|
19.
|
Photograph
of the Mortgaged Property.
|
|
|
20.
|
Survey
of the Mortgage property, if required by the title company or applicable
law.
|
|
|
21.
|
Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e. map
or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
|
|
|
22.
|
All
required disclosure statements.
|
|
|
23.
|
If
available, termite report, structural engineer's report, water potability
and septic certification.
|
|
|
24.
|
Sales
contract, if applicable.
|
|
|
25.
|
Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files, and
all
other processing, underwriting and closing papers and records which
are
customarily contained in a mortgage loan file and which are required
to
document the Mortgage Loan or to service the Mortgage
Loan.
|
|
|
26.
|
Amortization
schedule, if available.
|
|
|
27.
|
Payment
history for any Mortgage Loan that has been closed for more than
90
days.
|
In
the event an Officer's Certificate
of the Company is delivered to the Custodian because of a delay caused by the
public recording office in returning any recorded document, the Company shall
deliver to the Custodian, within 240 days of the related Closing Date, an
Officer's Certificate which shall (i) identify the recorded document, (ii)
state
that the recorded document has not been delivered to the Custodian due solely
to
a delay caused by the public recording office, (iii) state the amount of time
generally required by the applicable recording office to record and return
a
document submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian. The Company
shall be required to deliver to the Custodian the applicable recorded document
by the date specified in (iv) above. An extension of the date
specified in (iv) above may be requested from the Purchaser, which consent
shall
not be unreasonably withheld.
EXHIBIT
D
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
||
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
||
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
|
Pool
Asset Administration (cont’d)
|
|||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
||
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
EXHIBIT
E
FORM
OF
SARBANES CERTIFICATION
|
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ]
(the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [Name of
Servicer], certify to [the Owner], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2) Based
on my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on my knowledge, all of the Servicer Servicing Information required to be
provided by the Servicer under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Servicer under
the
Agreement, and based on my knowledge and the compliance review conducted in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement, the Servicing Assessment and the Attestation Report
required to be provided by the Servicer pursuant to the Agreement have been
provided to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the [Depositor]
[Master Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
| Date: | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
EXHIBIT
F
FORM
OF
XXXXXXXX-XXXXX BACK-UP CERTIFICATION
I,
______________________, Vice President of Xxxxx Fargo Bank, N.A. (the
"Servicer"), certify to __________________, and its officers, directors, agents
and affiliates (the "Sarbanes Certifying Party"), and with the knowledge and
intent that they will rely upon this certification, that:
|
(i)
|
Based
on my knowledge, the information relating to the Mortgage Loans and
the
servicing thereof submitted by the Servicer to the Sarbanes Certifying
Party which is used in connection with preparation of the reports
on Form
8-K and the annual report on Form 10-K filed with the Securities
and
Exchange Commission with respect to the Securitization, taken as
a whole,
does not contain any untrue statement of a material fact or omit
to state
a material fact necessary to make the statements made, in light of
the
circumstances under which such statements were made, not misleading
as of
the date of this certification;
|
|
(ii)
|
The
servicing information required to be provided to the Sarbanes Certifying
Party by the Servicer under the relevant servicing agreement has
been
provided to the Sarbanes Certifying
Party;
|
|
(iii)
|
I
am responsible for reviewing the activities performed by the Servicer
under the relevant servicing agreement and based upon the review
required
by the relevant servicing agreement, and except as disclosed in the
Annual
Statement of Compliance, the Annual Independent Public Accountant's
Servicing Report and all servicing reports, officer's certificates
and
other information relating to the servicing of the Mortgage Loans
submitted to the Sarbanes Certifying Party, the Servicer has, as
of the
date of this certification fulfilled its obligations under the relevant
servicing agreement; and
|
|
(iv)
|
I
have disclosed to the Sarbanes Certifying Party all significant
deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers
or
similar standard as set forth in the relevant servicing
agreement.
|
|
(v)
|
The
Servicer shall indemnify and hold harmless the Sarbanes Certifying
Party
and its officers, directors, agents and affiliates from and against
any
losses, damages, penalties, fines, forfeitures, reasonable legal
fees and
related costs, judgments and other costs and expenses arising out
of or
based upon a breach by the Servicer or any of its officers, directors,
agents or affiliates of its obligations under this Certification
or the
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable
or
insufficient to hold harmless the Sarbanes Certifying Party, then
the
Servicer agrees that it shall contribute to the amount paid or payable
by
the Sarbanes Certifying Party as a result of the losses, claims,
damages
or liabilities of the Sarbanes Certifying Party in such proportion
as is
appropriate to reflect the relative fault of the Sarbanes Certifying
Party
on the one hand and the Servicer on the other in connection with
a breach
of the Servicer's obligations under this Certification or the Servicer's
negligence, bad faith or willful misconduct in connection
therewith.
|
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
|
Dated:
|
By:
|
||
| Name: | |||
| Title: | |||
EXHIBIT
G
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
____________,
20__
ASSIGNMENT,
ASSUMPTION AND RECOGNITION
AGREEMENT, dated ___________________, 20____ between _________________, a
_________________ corporation having an office at _________________ ("Assignor")
and _________________, having an office at _________________
("Assignee"):
For
and in consideration of the sum of
one dollar ($1.00) and other valuable consideration the receipt and sufficiency
of which are hereby acknowledge, and of the mutual covenants herein contained,
the parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under that certain
Seller's Warranties and Servicing Agreement, (the "Seller's Warranties and
Servicing Agreement"), dated as of _________________, by and between
_________________ (the "Purchaser"), and _________________ (the "Company"),
and
the Mortgage Loans delivered thereunder by the Company to the Assignor, and
that
certain Custodial Agreement, (the "Custodial Agreement"), dated as of
_________________, by and among the Company, the Purchaser and _________________
(the "Custodian").
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to the
Seller's Warranties and Servicing Agreement or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Seller's Warranties and Servicing
Agreement, the Custodial Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of,
and has not received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under, the Seller's
Warranties and Servicing Agreement or the Mortgage Loans; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 33 Act or require registration
pursuant thereto.
3. That
Assignee warrants and represent to, and covenants with, the Assignor and the
Company pursuant to Section 12.10 of the Seller's Warranties and Servicing
Agreement that:
a. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Seller's Warranties and Servicing Agreement, the Mortgage
Loans and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Company and the Assignor all
of
the Assignor's obligations as purchaser thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
33 Act or the securities laws of any state;
c. The
purchase price being paid by the Assignee for the Mortgage Loans are in excess
of $250,000.00 and will be paid by cash remittance of the full purchase price
within 60 days of the sale;
d. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the
Assignee nor any person authorized to act therefor has offered to Mortgage
Loans
by means of any general advertising or general solicitation within the meaning
of Rule 502(c) of US Securities and Exchange Commission Regulation D,
promulgated under the Securities Act;
e. The
Assignee considers itself a substantial sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
f. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
g. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner which would
constitute a distribution of the Mortgage Loans under the 33 Act or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
33
Act or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect
to the Mortgage Loans; and
h. Either
(1) the Assignee is not an employee benefit plan ("Plan") within the meaning
of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan (also "Plan") within the meaning of section 4975(e)(1)
of
the Internal Revenue Code of 1986 ("Code"), and the Assignee is not directly
or
indirectly purchasing the Mortgage Loans on behalf of, investment manager of,
as
named fiduciary of, as Trustee of, or with assets of, a Plan; or (2) the
Assignee's purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
i. The
Assignee's address for purposes of all notices and correspondence related to
the
Mortgage Loans and the Seller's Warranties and Servicing Agreements
is
|
|
||
|
|
||
|
|
||
|
|
The
Assignee's wire transfer
instructions for purposes of all remittances and payments related to the
Mortgage Loans and the Seller's Warranties and Servicing Agreement
is:
|
|
||
|
|
||
|
|
||
|
|
4. From
and after the date hereof, the Company shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, the Company shall recognize
the
Assignee as the owner of the Mortgage Loans and the Company shall service the
Mortgage Loans for the benefit of the Assignee pursuant to the Seller’s
Warranties and Servicing Agreement, the terms of which are incorporated herein
by reference. It is the intention of the Assignor, the Company and the Assignee
that the Seller’s Warranties and Servicing Agreement shall be binding upon and
inure to the benefit of the Company and the Assignee and their respective
successors and assigns.
[Signatures
Follow]
IN
WITNESS WHEREOF, the parties have
caused this Assignment and Assumption to be executed by their duly authorized
officers as of the date first above written.
|
Assignor
|
Assignee
|
|||
|
By: _______________________________
|
By: _____________________________
|
|||
|
Name: _____________________________
Its: _______________________________
Tax
Payer Identification
No.:
__________________________________
|
Name: _____________________________
Its: _______________________________
Tax
Payer Identification
No.:
__________________________________
|
MASTER
MORTGAGE LOAN PURCHASE AGREEMENT
This
is an Amended and Restated Master
Mortgage Loan Purchase Agreement (the "Agreement"), dated as of November 1,
2005
by and between EMC Mortgage Corporation, having an office at 000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Purchaser") and Xxxxx
Fargo Bank, N.A., having an xxxxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000
(the "Seller").
WITNESSETH
WHEREAS,
the Seller agrees to sell, and
the Purchaser agrees to purchase, from time to time certain conventional
residential mortgage loans (the "Mortgage Loans") on a servicing retained basis
as described herein:
WHEREAS,
the Mortgage Loans shall be
delivered as pools of whole loans (each a “Loan Package”) on various dates as
provided herein (each a “Closing Date”); and
WHEREAS,
the parties intend hereby to
set forth the terms and conditions upon which the proposed Transactions will
be
effected.
NOW
THEREFORE, in consideration of the
promises and the mutual agreements set forth herein, the parties hereto agree
as
follows:
SECTION
1. All capitalized terms
not otherwise defined herein have the respective meanings set forth in the
Amended and Restated Master Seller's Warranties and Servicing Agreement, dated
as of the date herewith (the“Master Seller's Warranties and Servicing
Agreement").
SECTION
2. Agreement to
Purchase. The Seller agrees to sell, and the Purchaser agrees to
purchase from time to time, Mortgage Loans having an aggregate principal balance
on the applicable related Cut-off Date in an amount as set forth in the related
Commitment Letters 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 in the related Loan Package accepted by the Purchaser on the related
Closing Date. The Mortgage Loans will be delivered pursuant to the
Master Seller's Warranties and Servicing Agreement.
SECTION
3. Mortgage
Schedules. The Seller will provide the Purchaser with certain
information constituting a listing of the Mortgage Loans to be purchased under
this Agreement for each Transaction (the "Mortgage Loan
Schedule"). Each Mortgage Loan Schedule shall conform to the
definition of "Mortgage Loan Schedule" under the Master Seller's Warranties
and
Servicing Agreement.
SECTION
4. Purchase
Price. The purchase price for each Loan Package (the "Purchase
Price") shall be the percentage of par as stated in the related Commitment
Letter, multiplied by the aggregate principal balance, as of the related Cut-off
Date, of the Mortgage Loans listed in the related Loan Package, after
application of scheduled payments of principal for such related Loan Package
due
on or before the related Cut-off Date whether or not collected. The
purchase price for a Loan Package may be adjusted as stated in the related
Commitment Letter.
In
addition to the Purchase Price, the
Purchaser shall pay to the Seller, at closing, accrued interest on the initial
principal amount of the Mortgage Loans at the weighted average Mortgage Loan
Remittance Rate for each Loan Package from the related Cut-off Date through
the
day prior to the related Closing Date, inclusive.
With
respect to each Loan Package, the
Purchaser shall be entitled to (1) all scheduled principal due after the related
Cut-off Date, (2) all other recoveries of principal collected after the related
Cut-off Date (provided, however, that all scheduled payments of principal due
on
or before the related Cut-off Date and collected by the Seller after the related
Cut-off Date shall belong to the Seller), and (3) all payments of interest
on
the Mortgage Loans at the 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 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. Therefore,
payments of scheduled principal and interest prepaid for a due date beyond
the
related Cut-off Date shall not be applied to the principal balance as of the
related Cut-off Date. Such prepaid amounts (minus interest at the
Servicing Fee Rate) shall be the property of the Purchaser. The
Seller shall deposit any such prepaid amounts into the Custodial Account, which
account is established for the benefit of the Purchaser for subsequent
remittance by the Seller to the Purchaser.
SECTION
5. Examination of
Mortgage Files. Prior to each Closing Date, the Seller shall (a)
deliver to the Purchaser in escrow, for examination, the Mortgage File for
each
Mortgage Loan, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the Mortgage Files available to the Purchaser
for examination at the Seller's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Seller. Such
examination may be made by the Purchaser or by any prospective purchaser of
the
Mortgage Loans from the Purchaser, at any time before or after such related
Closing Date, upon prior reasonable notice to the Seller. The fact
that the Purchaser or any prospective purchaser of the Mortgage Loans has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the Purchaser's (or any of its successor's)
rights to demand repurchase, substitution or other relief as provided under
the
Master Seller's Warranties and Servicing Agreement.
Prior
to
Seller’s receipt of the Purchase Price, the Purchaser shall cause the Custodian
to act as bailee for the sole and exclusive benefit of the Seller pursuant
to
the Custodial Agreement and act only in accordance with Seller’s
instructions. Upon the Seller’s receipt of the Purchase Price, the
Seller shall provide notification to the Custodian to release ownership of
the
Mortgage Loan Documents contained in the Custodial Mortgage
File. Such notification shall be in a form of a written notice by
facsimile or other electronic media, with a copy sent to the
Purchaser. Subsequent to such release, such Mortgage Loan Documents
shall be retained by the Custodian for the benefit of the
Purchaser. All Mortgage Loan Documents related to Mortgage Loans not
purchased by the Purchaser on the Closing Date, shall be maintained by the
Custodian for the benefit of the Seller and shall be returned to the Seller
within two (2) Business Days after the Closing Date.
SECTION
6. Representations,
Warranties and Agreements of Seller. The Seller agrees and
acknowledges that it shall, as a condition to the consummation of the
transactions contemplated hereby, make the representations and warranties
specified in Section 3.01 and 3.02 of the Master Seller's Warranties and
Servicing Agreement, as of each related Closing Date. The meaning of
the term "Agreement" as used in Sections 3.01 and 3.02 of the Master Seller's
Warranties and Servicing Agreement shall include this Agreement. The
Seller, without conceding that the Mortgage Loans are securities, hereby makes
the following additional representations, warranties and agreements which shall
be deemed to have been made as of the related Closing Date:
a)neither
the Seller nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of any Mortgage Loans, any interest
in
any Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of any
Mortgage Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any person to act, in such manner with respect to the Mortgage Loans;
and
b)the
Seller has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Purchaser.
SECTION
7. Representation, Warranties and Agreement of
Purchaser. The Purchaser, without conceding that the Mortgage
Loans are securities, hereby makes the following representations, warranties
and
agreements, which shall have been deemed to have been made as of the related
Closing Date.
a) the
Purchaser understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state;
b) the
Purchaser is acquiring the Mortgage Loans for its own account only and not
for
any other person;
c) the
Purchaser considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
d) the
Purchaser has been furnished with all information regarding the Mortgage Loans
which it has requested from the Seller or the Company; and
e) neither
the Purchaser nor anyone acting on its behalf offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage
Loan or any other similar security to, or solicited any offer to buy or accept
a
transfer, pledge or other disposition of any Mortgage Loan, any interest in
any
Mortgage Loan or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loan, any interest in any Mortgage
Loan
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of any
Mortgage Loan a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any person to act, in such manner with respect to the Mortgage
Loans.
SECTION
8. Closing. The closing for the purchase and sale
of each Loan Package shall take place on the related Closing Date. At
the Purchaser's option, the Closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree; or conducted in person, at such
place
as the parties shall agree.
The
closing shall be subject to each of
the following conditions:
a) all
of the representations and warranties of the Seller under this Agreement and
under the Master Seller's Warranties and Servicing Agreement shall be true
and
correct as of such related Closing Date and no event shall have occurred which,
with notice or the passage of time, would constitute a default under this
Agreement or an Event of Default under the Master Seller's Warranties and
Servicing Agreement;
b) the
Purchaser shall have received, or the Purchaser's attorneys shall have received
in escrow, all Closing Documents as specified in Section 9 of this Agreement,
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 respective
terms thereof;
c) the
Seller shall have delivered and released to the Custodian under the Master
Seller's Warranties and Servicing Agreement all documents required pursuant
to
the related Custodial Agreement, and
d) all
other terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions,
the Purchaser shall pay to the Seller on such related Closing Date the
applicable Purchase Price, plus accrued interest pursuant to Section 4 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION
9. Closing
Documents. With respect to the Mortgage Loans, the Closing
Documents shall consist of the following documents:
On
the initial Closing
Date:
|
|
1.
|
the
Master Seller's Warranties and Servicing Agreement, in three
counterparts;
|
|
|
2.
|
this
Agreement in two counterparts;
|
|
|
3.
|
the
Custodial Agreement, dated as November 30, 1999, by and between EMC
Mortgage Corporation as Owner, and Xxxxx Fargo Bank, N.A. (formerly
Xxxxx
Fargo Bank Minnesota, N.A.) attached as an exhibit to the Master
Seller's
Warranties and Servicing Agreement;
|
|
|
4.
|
the
Mortgage Loan Schedule for the related Loan Package, one copy to
be
attached to each counterpart of the Master Seller's Warranties and
Servicing Agreement, to each counterpart of this Agreement, and to
each
counterpart of the Custodial Agreement, as the Mortgage Loan Schedule
thereto;
|
|
|
5.
|
a
Receipt and Certification, as required under the Custodial
Agreement;
|
|
6.
|
an
Opinion of Counsel of the Seller, in the form of Exhibit 1 hereto;
and
|
|
7.
|
an
Assignment and Conveyance Agreement for the related Mortgage
Loans.
|
On
each
subsequent Closing Date, the following documents:
|
1.
|
the
Mortgage Loan Schedule for the related Loan
Package;
|
|
2.
|
an
Assignment and Conveyance Agreement for the related Mortgage Loans;
and
|
|
3.
|
a
Receipt and Certification, as required under the Custodial
Agreement.
|
SECTION
10.
Costs. The Purchaser shall pay any commissions due its
salesmen, the legal fees and expenses of its attorneys and the costs and
expenses associated with the Custodian. The Seller shall be
responsible for reasonable costs and expenses associated with any preparation
of
the initial assignments of mortgage. All other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including fees for title policy endorsements and continuations and the Seller's
attorney fees, shall be paid by the Seller.
SECTION
11.
Servicing The Mortgage Loans shall be serviced by the Seller
in accordance with the terms of the Master Seller's Warranties and Servicing
Agreement. The Seller shall be entitled to servicing fees calculated
as provided therein, at the Servicing Fee Rate.
SECTION
12. Financial
Statements. The Seller understands that in connection with the
Purchaser's marketing of the Mortgage Loans, the Purchaser shall make available
to prospective purchasers a Consolidated Statement of Operations of the Seller
for the most recently completed two fiscal years respecting which such a
statement is available, as well as a Consolidated Statement of Condition at
the
end of the last two (2) fiscal years covered by such Consolidated Statement
of
Operations. The Purchaser shall also make available any comparable
interim statements to the extent any such statements have been prepared by
the
seller in a format intended or otherwise suitable for the public at
large. The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified
above. The Seller shall also make available information on its
servicing performance with respect to loans in its own portfolio and loans
serviced for others (if any), including foreclosure and delinquency
ratios.
The
Seller also agrees to allow access
to a knowledgeable (as shall be determined by the Seller) financial or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
SECTION
13. Mandatory
Delivery. The sale and delivery on each Closing Date of the
related Mortgage Loans described on the respective Mortgage Loan Schedules
is
mandatory, it being specifically understood and agreed that each Mortgage Loan
must be unique and identifiable on such related Closing Date and that an award
of money damages would be insufficient to compensate the Purchaser for the
losses and damages incurred by the Purchaser (including damages to prospective
purchasers of the Mortgage Loans) in the event of the Seller's failure to
deliver the Mortgage Loans on or before such related Closing
Date. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
SECTION
14.
Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
by
registered or certified mail, return receipt requested, or, if by other means,
when received by the other party at the address shown on the first page hereof,
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice of 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
15. Severability
Clause. Any part, provision, representation or warranty of this
Agreement which is prohibited or which is held to be void or unenforceable
shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any party
of the economic benefit intended to be conferred by this Agreement, the parties
shall negotiate, in good-faith, to develop a structure the economic effect
of
which is as close as possible to the economic effect of this Agreement without
regard to such invalidity.
SECTION
16. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall
be deemed to be an original, and all such counterparts shall constitute one
and
the same instrument.
SECTION
17. Place of Delivery
and Governing Law. This Agreement shall be deemed in effect when
a fully executed counterpart thereof is received by the Purchaser in the State
of New York and shall be deemed to have been made in State of New
York. The Agreement shall be construed in accordance with the laws of
the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Each
of the Seller and the Purchaser
hereby knowingly, voluntarily and intentionally waives any and all rights it
may
have to a trial by jury in respect of any litigation based on, or arising out
of, under, or in connection with, this Agreement, or any other documents and
instruments executed in connection herewith, or any course of conduct, course
of
dealing, statements (whether oral or written), or actions of the Seller or
the
Purchaser. This provision is a material inducement for the Purchaser
to enter into this Agreement.
SECTION
18. Further
Agreements. The Purchaser and the Seller each agree to execute
and deliver to the other such additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Without
limiting the generality of the
foregoing, the Seller shall reasonably cooperate with the Purchaser in
connection with the initial resales of the Mortgage Loans by the
Purchaser. In that connection, the Seller shall provide to the
Purchaser: (i) any and all information and appropriate
verification of information, whether through letters of its auditors and counsel
or otherwise, as the Purchaser shall reasonably request, and (ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors and certificates of public officials or officers of the Seller
as
are reasonably believed necessary by the Purchaser in connection with such
resales. The requirement of the Seller pursuant to (ii) above shall
terminate on the related Closing Date, except as provided pursuant to Article
IX
of the Master Seller’s Warranties and Servicing Agreement. Prior to
incurring any out-of-pocket expenses pursuant to this paragraph, the Seller
shall notify the Purchaser in writing of the estimated amount of such
expense. The Purchaser shall reimburse the Seller for any such
expense following its receipt of appropriate details thereof.
SECTION
19. Intention of the
Parties. It is the intention of the parties that the Purchaser is
purchasing, and the Seller is selling, an undivided 100% ownership interest
in
the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Purchaser
shall have the right to review the Mortgage Loans and the related Mortgage
Loan
Files to determine the characteristics of the Mortgage Loans which shall affect
the Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
SECTION
20. Successors
and Assigns; Assignment of Purchase Agreement. This Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and
the
Purchaser and the respective successors and assigns of the Seller and the
Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION
21. Waivers;
Other Agreements. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be
enforced.
SECTION
22. Exhibits. The exhibits to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this
Agreement.
SECTION
23. General
Interpretive Principles. For purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
c) references
herein to "Articles", "Sections", "Subsections", "Paragraphs", and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
d) 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;
e) the
words
"herein", "hereof", "hereunder" and other words of similar import refer to
this
Agreement as a whole and not to any particular provision; and
f) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
SECTION
24. Reproduction
of Documents. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications which
may
hereafter be executed, (b) documents received by any party at the closing,
and
(c) financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar
process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such
reproduction was made by a party in the regular course of business, and that
any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
[Signatures
Follow]
IN
WITNESS WHEREOF, the Seller and the
Purchaser have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the date first above
written.
|
EMC
MORTGAGE CORPORATION
(Purchaser)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
XXXXX
FARGO BANK, N.A.
(Seller)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
EXHIBIT
1
FORM
OF
OPINION OF COUNSEL
@
@
@
@
Re: Mortgage
Loan Sale by Xxxxx Fargo Bank,
N.A. (the “Company”) to ________ (the “Purchaser”) of first lien mortgage loans
(the “Mortgage Loans”) pursuant to that certain Master Seller’s Warranties and
Servicing Agreement and Master Mortgage Loan Purchase Agreement by and between
the Company and the Purchaser, dated as of ______, 20__.
Dear
Sir/Madam:
I
am @ of
Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx Fargo Bank, N.A.
(the
“Company”), with respect to certain matters in connection with the sale by the
Company of Mortgage Loans pursuant to that certain Master Seller’s Warranties
and Servicing Agreement and Master Mortgage Loan Purchase Agreement
by and between the Company and @ (the “Purchaser”), dated as of @, 2003, (the
“Agreements”), which sale is in the form of whole Mortgage
Loans. Capitalized terms not otherwise defined herein have the
meanings set forth in the Master Seller’s Warranties and Servicing
Agreement.
I
have
examined the following documents:
|
1.
|
the
Master Seller’s Warranties and Servicing
Agreement;
|
|
2.
|
the
Master Mortgage Loan Purchase
Agreement;
|
|
3.
|
the
Custodial Agreement;
|
|
4.
|
the
form of endorsement of the Mortgage Notes;
and
|
|
5.
|
such
other documents, records and papers as I have deemed necessary and
relevant as a basis for this
opinion.
|
To
the
extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the
Agreements. I have assumed the authenticity of all documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all
documents.
Based
upon the foregoing, it is my opinion that;
|
1.
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United
States.
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Agreements, the Custodial Agreement and all requisite power, authority
and
legal right to execute and deliver the Agreements, the Custodial
Agreement
and the Mortgage Loans, and to perform and observe the terms and
conditions of such instruments.
|
|
3.
|
Each
person who, as an officer or attorney-in-fact of the Company,
signed (a) the Agreements, each dated as of @, 20__,
by and between the Company and the Purchaser, and (b) any other
document delivered prior hereto or on the date hereof in connection
with
the sale and servicing of the Mortgage Loans in accordance with the
Agreements was, at the respective times of such signing and delivery,
and
is, as of the date hereof, duly elected or appointed, qualified and
acting
as such officer or attorney-in-fact, and the signatures of such persons
appearing on such documents are their genuine
signatures.
|
|
4.
|
Each
of the Agreements, the Custodial Agreement, and the Mortgage Loans,
has
been duly authorized, executed and delivered by the Company and is
a
legal, valid and binding agreement enforceable in accordance with
its
terms, subject to the effect of insolvency, liquidation, convervatorship
and other similar laws administered by the Federal Deposit Insurance
Corporation affecting the enforcement of contract obligations of
insured
banks and subject to the application of the rules of equity, including
those respecting the availability of specific performance, none of
which
will materially interfere with the realization of the benefits provided
thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
|
5.
|
The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original signature in order to complete
the
transactions contemplated by the Agreements and the Custodial Agreement,
and by original or facsimile signature in order to execute the
endorsements to the Mortgage Notes and the assignments of the Mortgages,
and the original or facsimile signature of the officer at the Company
executing the endorsements to the Mortgage Notes and the assignments
of
the Mortgages represents the legal and valid signature of said officer
of
the Company.
|
|
6.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Agreements, the Custodial Agreement or the sale and delivery of the
Mortgage Loans or the consummation of the transactions contemplated
by the
Agreements, and the Custodial Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the
Company.
|
|
7.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of the Agreements and the Custodial Agreement, will
conflict
with or results in or will result in a breach of or constitutes or
will
constitute a default under the charter or by-laws of the Company,
the
terms of any indenture or other agreement or instrument to which
the
Company is a party or by which it is bound or to which it is subject,
or
violates any statute or order, rule, regulations, writ, injunction
or
decree of any court, governmental authority or regulatory body to
which
the Company is subject or by which it is
bound.
|
|
8.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
my knowledge, threatened against the Company which, in my opinion,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment
of the
right or ability of the Company to carry on its business substantially
as
now conducted or in any material liability on the part of the Company
or
which would draw into question the validity of the Agreements, and
the
Custodial Agreement, or of any action taken or to be taken in connection
with the transactions contemplated thereby, or which would be likely
to
impair materially the ability of the Company to perform under the
terms of
the Agreements and the Custodial
Agreement.
|
|
9.
|
For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless
the
potential litigant or governmental authority has manifested to the
legal
department of the Company or an employee of the Company responsible
for
the receipt of process a present intention to initiate such proceedings;
nor have I regarded any legal or governmental actions, investigations
or
proceedings as including those that are conducted by state or federal
authorities in connection with their routine regulatory
activities. The sale of each Mortgage Note and Mortgage as and
in the manner contemplated by the Agreements is sufficient fully
to
transfer all right, title and interest of the Company thereto as
noteholder and mortgagee, apart from the rights to service the Mortgage
Loans pursuant to the Agreements.
|
|
10.
|
The
form of endorsement that is to be used with respect to the Mortgage
Loans
is legally valid and sufficient to duly endorse the Mortgage Notes
to the
Purchaser. Upon the completion of the endorsement of the
Mortgage Notes and the completion of the assignments of the Mortgages,
and
the recording thereof, the endorsement of the Mortgage Notes, the
delivery
to the Custodian of the completed assignments of the Mortgages, and
the
delivery of the original endorsed Mortgage Notes to the Custodian
would be
sufficient to permit the entity to which such Mortgage Note is initially
endorsed at the Purchaser’s direction, and to whom such assignment of
Mortgages is initially assigned at the Purchaser’s direction, to avail
itself of all protection available under applicable law against the
claims
of any present or future creditors of the Company, and would be sufficient
to prevent any other sale, transfer, assignment, pledge or hypothecation
of the Mortgages and the Mortgage Notes by the Company from being
enforceable.
|
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
Sincerely,
@
@
@/@
