RECONSTITUTED SERVICING AGREEMENT
EXECUTION
THIS
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”) entered into as of the 1st
day of May, 2007, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the “Seller” or “Xxxxxx Holdings”) and NATIONAL CITY MORTGAGE CO.,
an Ohio corporation (referred to herein as the “Company” or the “Servicer”), and
acknowledged by AURORA LOAN SERVICES LLC, a Delaware limited liability company,
as Master Servicer under the Trust Agreement (as defined herein), and XXXXX
FARGO BANK, N.A., as trustee under the Trust Agreement (the “Trustee”), recites
and provides as follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (“Xxxxxx Brothers Bank”) acquired certain
conventional, residential, fixed rate, first lien mortgage loans from the
Servicer pursuant to an Amended and Restated Flow Mortgage Loan Purchase,
Warranties and Servicing Agreement dated as of May 1, 2007 (for Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2007-FLOW)
(the
“SWSA”).
WHEREAS,
pursuant to an assignment and assumption agreement dated as of May 1, 2007
(the
“Assignment and Assumption Agreement”) and annexed hereto as Exhibit C, Xxxxxx
Brothers Bank has assigned all of its rights, title and interest in these
mortgage loans as identified on Exhibit E hereto (the “Serviced Mortgage Loans”)
as well as all of its rights and obligations as purchaser under the SWSA to
the
Seller, and the Seller has accepted such assignment.
WHEREAS,
the Seller has conveyed the Serviced Mortgage Loans to Structured Asset
Securities Corporation, a Delaware special purpose corporation (“SASCO” or the
“Depositor”), pursuant to a mortgage loan sale and assignment agreement dated as
of May 1, 2007 (the “Mortgage Loan Sale and Assignment Agreement”), and SASCO in
turn has conveyed the Serviced Mortgage Loans to the Trustee pursuant to a
trust
agreement, dated as of May 1, 2007 (the “Trust Agreement”), among the Trustee,
Aurora Loan Services LLC, as master servicer (“Aurora”, and together with any
successor Master Servicer appointed pursuant to the provisions of the Trust
Agreement, the “Master Servicer”) and the Depositor.
WHEREAS,
the Seller desires that the Servicer continue to service the Serviced Mortgage
Loans, and the Servicer has agreed to do so, subject to the rights of the Seller
and the Master Servicer to terminate the rights and obligations of the Servicer
hereunder as set forth herein and to the other conditions set forth
herein.
WHEREAS,
the Seller and the Servicer agree that the provisions of the SWSA shall apply
to
the Serviced Mortgage Loans, but only to the extent provided herein and that
this Agreement shall govern the Serviced Mortgage Loans for so long as such
Serviced Mortgage Loans remain subject to the provisions of the Trust
Agreement.
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Serviced Mortgage Loans on
behalf of the Trustee, and shall have the right, under certain circumstances,
to
terminate the rights and obligations of the Servicer under this
Agreement.
WHEREAS,
the Seller and the Servicer intend that each of the Master Servicer and the
Trustee is an intended third party beneficiary of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions.
Capitalized terms used and not defined in this Agreement, including Exhibit
A
hereto and any provisions of the SWSA incorporated by reference herein
(regardless if such terms are defined in the SWSA), shall have the meanings
ascribed to such terms in the Trust Agreement.
2. Custodianship.
The
parties hereto acknowledge that U.S. Bank National Association will act as
custodian of the Serviced Mortgage Files for the Trustee pursuant to the
Custodial Agreement dated as of May 1, 2007, by and between U.S. Bank National
Association and the Trustee.
3. Servicing.
The
Servicer agrees, with respect to the Serviced Mortgage Loans, to perform and
observe the duties, responsibilities and obligations that are to be performed
and observed under the provisions of the SWSA, except as otherwise provided
herein and on Exhibit A hereto, and that the provisions of the SWSA, as so
modified, are and shall be a part of this Agreement to the same extent as if
set
forth herein in full.
4. Trust
Cut-off Date.
The
parties hereto acknowledge that by operation of Section 4.05 and Section 5.01
of
the SWSA, the remittance on June 18, 2007 to the Trust Fund is to include
principal due after May 1, 2007 (the “Trust Cut-off Date”) plus interest, at the
Mortgage Loan Remittance Rate collected during the related Due Period exclusive
of any portion thereof allocable to a period prior to the Trust Cut-off Date,
with the adjustments specified in clauses (b), (c) and (d) Section 6.01 of
the
SWSA.
5. Master
Servicing; Termination of Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Serviced Mortgage Loans in accordance
with
the provisions of this Agreement. The Master Servicer, acting on behalf of
the
Trustee and the LMT 2007-5 Trust Fund (the “Trust Fund”) created pursuant to the
Trust Agreement, shall have the same rights as Xxxxxx Brothers Bank under the
SWSA to enforce the obligations of the Servicer under the SWSA and the term
“Purchaser” as used in the SWSA in connection with any rights of the Purchaser
shall refer to the Trust Fund or, as the context requires, the Master Servicer
acting in its capacity as agent for the Trust Fund, except as otherwise
specified in Exhibit A hereto. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement upon
the failure of the Servicer to perform any of its obligations under this
Agreement, which failure results in an Event of Default as provided in Article
XI of the SWSA. Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer assume any of the obligations of Xxxxxx Brothers
Bank
under the SWSA and in connection with the performance of the Master Servicer’s
duties hereunder the parties and other signatories hereto agree that the Master
Servicer shall be entitled to all of the rights, protections and limitations
of
liability afforded to the Master Servicer under the Trust
Agreement.
6. No
Representations.
Neither
the Servicer nor the Master Servicer shall be obligated or required to make
any
representations and warranties regarding the characteristics of the Serviced
Mortgage Loans (other than those representations and warranties made by the
Servicer in Section 4.01 of the SWSA) in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
7. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee
shall
be in writing and shall be deemed received or given when mailed first-class
mail, postage prepaid, addressed to each other party at its address specified
below or, if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender of such
notice. Each party may designate to the other parties in writing, from time
to
time, other addresses to which notices and communications hereunder shall be
sent.
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All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
All
remittances required to be made to the Master Servicer under this Agreement
shall be made on a scheduled/scheduled basis to the following wire
account:
The
Bank
of New York
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LMT 2007-5
All
notices required to be delivered to the Trustee hereunder shall be delivered
to
the Trustee at the following address:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Services Manager, LMT 2007-5
(or
in the case of overnight deliveries,
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
All
notices required to be delivered to the Seller hereunder shall be delivered
to
the Seller at the following address:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx.xxx
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All
notices required to be delivered to the Servicer hereunder shall be delivered
to
its office at the address for notices as set forth in the SWSA.
8. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
9. Trustee
Capacity.
It is
expressly understood and agreed by the parties hereto that insofar as this
Agreement is executed by Xxxxx Fargo Bank, N.A. (i) it is executed and
delivered by such party, not in its individual capacity but solely
as Trustee under the Trust Agreement dated
as of May 1, 2007, among the Depositor, the Trustee, and any other party named
therein in
the exercise of the powers and authority conferred to and vested in it
thereunder, (ii) each of the representations, undertakings and agreements herein
made on behalf of the Trust Fund is made and intended not as personal
representations, undertakings and agreements of the Trustee but is made and
intended solely for the purpose of binding only the Trust
Fund, and (iii) under no circumstances shall
the Trustee in its individual capacity be personally liable for the
payment of any indebtedness or expenses or be personally liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken under this Agreement or any related document.
10. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
11. Termination.
Upon
the termination of the Trust Fund pursuant to Article VII of the Trust
Agreement, this Agreement shall terminate, and thereafter, the Mortgage Loans
shall be serviced in accordance with the terms of the SWSA. In the event that
the SWSA was terminated prior to the termination of the Trust Fund, the Servicer
and the Master Servicer shall enter into a replacement servicing agreement
with
respect to the Mortgage Loans, which agreement shall be similar to the SWSA
in
all material respects. In the event that the Master Servicer and the Servicer
fail to enter into a replacement servicing agreement promptly after the
termination of the Trust Fund, the Master Servicer may transfer the servicing
of
the Mortgage Loans to a third party servicer at its sole discretion; provided
that the Mortgage Loans shall be serviced in accordance with the terms of this
Agreement until such time the servicing of the Mortgage Loans has been
transferred to such third-party servicer.
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Executed
as of the day and year first above written.
XXXXXX
BROTHER HOLDINGS INC.,
as
Seller
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Authorized Signatory
NATIONAL
CITY MORTGAGE CO.,
as
Servicer
By:
/s/ Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Senior Vice President
Acknowledged:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/ Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity but solely as Trustee
By: /s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
EXHIBIT
A
Modifications
to the SWSA
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1.
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Unless
otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating
to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Agency Transfer,
Whole Loan Transfers, Securitization Transactions and Reconstitution,
and
(iv) Assignments of Mortgage (except for Section 12.11 thereof),
shall be
disregarded for purposes relating to this Agreement. Except as otherwise
referred to herein, the exhibits to the SWSA and all references to
such
exhibits shall also be disregarded.
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2.
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The
definition of “Business Day” is hereby amended in its entirety to read as
follows:
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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 State of New York, the State of Maryland and the
State of Minnesota are authorized or obligated by law or executive order to
be
closed.
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3.
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The
definition of “Closing Date” is hereby amended in its entirety to read as
follows:
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Closing
Date:
May 30,
2007.
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4.
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The
definition of “Custodial Agreement” in Article I is hereby amended in its
entirety to read as follows:
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Custodial
Agreement:
The
custodial agreement dated as of May 1, 2007, by and between the Custodian and
the Trustee.
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5.
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The
definition of “Custodian” in Article I is hereby amended in its entirety
to read as follows:
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Custodian:
U.S.
Bank National Association and any of its successors and assigns.
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6.
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The
definition of “Eligible Investments” in Article I is hereby amended in its
entirety to read as follows:
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Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories, the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
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(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the aggregate principal balance of the Mortgage
Loans; provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from either Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time, provided, however, that no such instrument shall be an Eligible Investment
if such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument, or
(ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with respect
to such instrument provide a yield to maturity of greater than 120% of the
yield
to maturity at par of such underlying obligations.
A-2
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7.
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The
definition of “GNMA” is hereby added to Article I to immediately follow
the definition of “Xxxxxxx Mac
Guides”:
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GNMA:
The
Government National Mortgage Association, or any successor thereto.
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8.
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The
definition of “Monthly Advance” in Article I is hereby amended in its
entirety to read as follows:
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Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate) that was due on the Mortgage Loan on the
Due
Date in the related Due Period, and that (i) was delinquent at the close of
business on the related Determination Date and (ii) was not the subject of
a
previous Monthly Advance, but only to the extent that such amount is expected,
in the reasonable judgment of the Servicer, to be recoverable from collections
or other recoveries in respect of such Mortgage Loan. To the extent that the
Servicer determines that any such amount is not recoverable from collections
or
other recoveries in respect of such Mortgage Loan, such determination shall
be
evidenced by a certificate of a Servicing Officer delivered to the Master
Servicer setting forth such determination and the procedures and considerations
of the Servicer forming the basis of such determination, which shall include
a
copy of any BPO and any other information or reports obtained by the Servicer
which may support such determinations.
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9.
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The
definition of “Mortgage Loan” in Article I is hereby amended in its
entirety to read as follows:
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Mortgage
Loan:
An
individual servicing retained Mortgage Loan which is subject to this Agreement
being identified on the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan includes without limitation the Mortgage Loan documents, the Monthly
Reports, 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.
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10.
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The
definition of “Mortgage Loan Schedule” in Article I is hereby amended in
its entirety to read as follows:
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Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth certain information with respect to
the
Mortgage Loans, which Mortgage Loan Schedule is attached as Exhibit J to this
Agreement.
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11.
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The
definition of “Prepayment Interest Shortfall Amount” in Article I is
hereby amended in its entirety to read as
follows:
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Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a voluntary (not including
discounted payoffs) Principal Prepayment in full or in part during any Due
Period, which Principal Prepayment was applied to such Mortgage Loan prior
to
such Mortgage Loan’s Due Date in such Due Period, the amount of interest (net of
the related Servicing Fee for Principal Prepayments in full only) that would
have accrued on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to
such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
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12.
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The
definition of “Qualified Depository” in Article I is hereby amended in its
entirety to read as follows:
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Qualified
Depository:
Any of
(i) a federal or state-chartered depository institution the accounts of which
are insured by the FDIC and whose commercial paper, short-term debt obligations
or other short-term deposits are rated at least “A-1+” by Standard & Poor’s
if the deposits are to be held in the account for less than 30 days, or whose
long-term unsecured debt obligations are rated at least “AA-” by Standard &
Poor’s if the deposits are to be held in the account for more than 30 days, but
no more than 365 days, or (ii) the corporate trust department of a federal
or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate trust powers,
acting in its fiduciary capacity.
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13.
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The
definition of “Qualified GIC” is hereby added to Article I to immediately
follow the definition of “Qualified Depository”, to read as
follows:
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Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Custodial Account and insuring a minimum, fixed or floating rate
of
return on investments of such funds, which contract or surety bond
shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide
that the Servicer may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Servicer, the Servicer shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Servicer’s interest therein shall be transferable to any successor
Servicer or the Master Servicer hereunder; and
A-4
(e) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Custodial Account, as the case may be, not later than the Business Day
prior to any Determination Date.
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14.
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The
definition of “Servicing Fee” in Article I is hereby amended in its
entirety to read as follows:
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Servicing
Fee:
An
amount equal to one-twelfth the product of (a) the Servicing Fee Rate and (b)
the outstanding principal balance of the Mortgage Loan. The Servicing Fee is
payable solely from the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds) of such Monthly Payment collected by the Servicer
or
as otherwise provided under this Agreement.
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15.
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The
definition of “Servicing Officer” is hereby added to Article I to
immediately follow the definition of “Servicing File”, to read as
follows:
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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 Trust Fund upon request, as such list
may from time to time be amended.
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16.
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The
parties acknowledge that the third paragraph of Section 2.02 shall
be
inapplicable to this Agreement.
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17.
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The
parties acknowledge that Section 2.03 (Custodial Agreement; Delivery
of
Documents) shall be superseded by the provisions of the applicable
Custodial Agreement.
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18.
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Section
4.01(c) (No Conflicts) is hereby amended by deleting the words “the
acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage
Loans to the Purchaser or the transactions contemplated
hereby”.
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19.
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Section
4.01(f) (Ability to Perform) is hereby amended by deleting the second
and
third sentences thereof.
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20.
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Section
4.01(h) (No Consent Required) is hereby amended by deleting the words
“or
the sale of the Mortgage Loans to the Purchaser or the consummation
of the
transactions contemplated by this
Agreement”.
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21.
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Section
4.01 (i) (Selection Process), Section 4.01 (j) (Pool Characteristics),
Section 4.01 (l) (Sale Treatment), Section 4.01 (n) (No Broker’s Fees’),
Section 4.01 (o) (Origination) and Section 4.01(q) (Fair Consideration)
shall be inapplicable to this
Agreement.
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22.
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Section
4.03 (Remedies for Breach of Representations and Warranties) is hereby
amended in its entirety to read as
follows:
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It
is
understood and agreed that the representations and warranties set forth in
Section 4.01 (a) through (h), (k), (m), (p) and (r) shall survive the engagement
of the Servicer to perform the servicing responsibilities hereunder and the
delivery of the Servicing Files to the Servicer and shall inure to the benefit
of the Trustee, the Trust Fund and the Master Servicer. Upon discovery by either
the Servicer, the Master Servicer or the Trustee of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the ability of the Servicer to perform its duties and obligations under this
Agreement or otherwise materially and adversely affects the value of the
Mortgage Loans, the Mortgaged Property or the priority of the security interest
on such Mortgaged Property or the interest of the Trustee or the Trust Fund,
the
party discovering such breach shall give prompt written notice to the
other.
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Within
60
days (or in the case of any breach of a representation or warranty set forth
in
Section 2 of the Regulation AB Compliance Addendum set forth in Exhibit I,
five
(5) days) of the earlier of either discovery by or notice to the Servicer of
any
breach of a representation or warranty set forth in Section 4.01 which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Loans, the Mortgaged Property or the priority
of the security interest on such Mortgaged Property, the Servicer shall use
its
best efforts promptly to cure such breach in all material respects and, if
such
breach cannot be cured, the Servicer shall, at the Master Servicer’s option,
assign the Servicer’s rights and obligations under this Agreement (or respecting
the affected Loans) to a successor Servicer selected by the Master Servicer
with
the prior consent and approval of the Trustee (if its approval is required
under
the Trust Agreement. Such assignment shall be made in accordance with Section
12.01.
In
addition, the Servicer shall indemnify (from its own funds) the Trustee, the
Trust Fund and Master Servicer and hold each of them harmless against any costs
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer’s representations and
warranties contained in this Agreement. It is understood and agreed that the
remedies set forth in this Section 4.03 constitute the sole remedies of the
Master Servicer, the Trust Fund and the Trustee respecting a breach of the
foregoing representations and warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 4.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Trustee or
Master Servicer to the Servicer, (ii) failure by the Servicer to cure such
breach within the applicable cure period, and (iii) demand upon the Servicer
by
the Trustee or the Master Servicer for compliance with this
Agreement.
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23.
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Section
4.04 (Restrictions and Requirements Applicable in the Event that
a
Mortgage Loan is Acquired by a REMIC) is hereby amended by adding
the
following sentence at the end of the first paragraph of Subsection
(d)
thereof:
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Notwithstanding
the foregoing, no Opinion of Counsel shall be required for any modification
of a
Mortgage Loan pursuant to Section 5.01.
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24.
|
Section
5.01 (Company to Act as Servicer) is hereby amended as
follows:
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(i) by
deleting the first, second and third sentences of the second paragraph of such
section and replacing it with the following:
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 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
unless the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Company, reasonably forseeable, the Company
shall not permit any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage
Loan. In
the
event of such modification, the Company shall calculate the Monthly Payment
for
such Mortgage Loan based on the modified terms of such Mortgage Loan and shall
only be required to make Monthly Advances pursuant to Section 6.03 to the extent
of such new Monthly Payment.
A-6
(ii) by
adding
the following to the end of the second paragraph of such section:
Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Company shall forward to the Master Servicer copies
of
any documents evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause any REMIC created under the
Trust
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under Section 860F(a) or Section 860G(d) of the Code.
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25.
|
Section
5.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
|
(i) the
words
“National City Mortgage Co., in trust for Xxxxxx Brothers Bank, purchaser of
Conventional Residential Adjustable and Fixed Rate Mortgage Loans, Group
2007-FLOW” in the fourth, fifth and sixth lines of the first sentence of the
first paragraph shall be replaced by the following words:
“National
City Mortgage Co. in trust for the LMT 2007-5 Trust Fund”;
(ii) by
inserting the words “and the Master Servicer within 30 days of the Closing Date”
after the words “furnished to the Purchaser” in the second to last line of the
first paragraph;
(iii) by
amending clause (xi) to read as follows:
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(xi)
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the
amount of any Prepayment Interest Shortfall Amount paid out of the
Servicer’s own funds without any right to reimbursement
therefor;
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(iv) by
replacing the words “on a daily basis within one Business Day of receipt” in the
second paragraph with “within two (2) Business Days after receipt”.
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26.
|
Section
5.05 (Permitted Withdrawals From Custodial Account) is hereby amended
by
replacing the last five lines of clause (ii) with the following:
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Servicer’s
right thereto shall be prior to the rights of the Trust Fund; provided however,
that in
the event that the Servicer determines in good faith that any unreimbursed
Monthly Advances will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the particular
Mortgage Loan as to which such Monthly Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loan, the Servicer
may reimburse itself for such amounts from the Custodial Account, it being
understood, in the case of any such reimbursement, that the Servicer’s right
thereto shall be prior to the rights of the Trust Fund;
A-7
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27.
|
Section
5.06 (Establishment of and Deposits to Escrow Account) is hereby
amended
as follows:
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(i) by
deleting the words “National City Mortgage Co., in trust for Xxxxxx Brothers
Bank, purchaser of Conventional Residential Adjustable and Fixed Rate Mortgage
Loans, Group 2007-FLOW” in the fourth , fifth and sixth lines of the first
sentence of the first paragraph, and replacing it with the following words:
“National
City Mortgage Co. in trust for the LMT 2007-5 Trust Fund”.
(ii) by
inserting the words “and the Master Servicer within 30 days of the Closing Date”
after the words “furnished to the Purchaser” in the second to last line of the
first paragraph;
(iii) by
replacing the words “on a daily basis within one Business Day of receipt” in the
second paragraph with “within two (2) Business Days after receipt”.
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28.
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Section
5.16 (Title, Management and Disposition of REO Property) is hereby
amended
by (i) replacing the reference to “one year” in the seventh line of the
second paragraph thereof with “three years” and (ii) adding two new
paragraphs after the second paragraph thereof to read as
follows:
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In
the
event that the Trust Fund acquires any REO Property in connection with a default
or imminent default on a Mortgage Loan, the Servicer shall dispose of such
REO
Property not later than the end of the third taxable year after the year of
its
acquisition by the Trust Fund unless the Servicer has applied for and received
a
grant of extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a longer period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the Servicer has
received such an extension, then the Servicer shall continue to attempt to
sell
the REO Property for its fair market value for such period longer than three
years as such extension permits (the “Extended Period”). If the Servicer has not
received such an extension and the Servicer is unable to sell the REO Property
within the period ending 3 months before the end of such third taxable year
after its acquisition by the Trust Fund or if the Servicer has received such
an
extension, and the Servicer is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the Servicer shall,
before the end of the three year period or the Extended Period, as applicable,
(i) purchase such REO Property at a price equal to the REO Property’s fair
market value or (ii) auction the REO Property to the highest bidder (which
may
be the Servicer) in an auction reasonably designed to produce a fair price
prior
to the expiration of the three-year period or the Extended Period, as the case
may be. The Trustee shall sign any document or take any other action reasonably
requested by the Servicer which would enable the Servicer, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such
taxes.
A-8
(iii)
deleting the first sentence of the third paragraph thereof, (iv) replacing
the
words “one” and “sentence” with “three” and “paragraph”, respectively, in the
fifth line of the third paragraph thereof, and (v) replacing the word “advances”
in the fourth line of the seventh paragraph thereof with “Monthly
Advances”;
(vi) by
adding
the following to the end of such Section:
Prior
to
acceptance by the Servicer of an offer to sell any REO Property, the Servicer
shall notify the Master Servicer of such offer in writing which notification
shall set forth all material terms of said offer (each a “Notice of Sale”). The
Master Servicer shall be deemed to have approved the sale of any REO Property
unless the Master Servicer notifies the Servicer in writing, within five (5)
days after its receipt of the related Notice of Sale, that it disapproves of
the
related sale, in which case the Servicer shall not proceed with such
sale.
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29.
|
Section
5.19 (Notification of Adjustments) shall be inappicable to this
Agreement.
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30.
|
Section
6.01 (Remittances) is hereby amended by adding the following after
the
second paragraph of such Section:
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All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
The
Bank
of New York
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master
Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LMT 2007-5
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31.
|
Section
5.02 (Statements to Purchaser) is hereby amended in its entirety
to read
as follows:
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Section
6.02 Statements
to Master Servicer.
Not
later
than the tenth calendar day of each month (or if such calendar day is not a
Business Day, the immediately preceding Business Day), the Servicer shall
furnish to the Master Servicer (i) a monthly remittance advice in a format
(mutually agreed to between the Servicer and the Master Servicer) similar to
the
format set forth in Exhibit E-1 hereto and a monthly defaulted loan report
in a
format (mutually agreed to between the Servicer and the Master Servicer) similar
to the format set forth in Exhibit E-2 hereto relating to the period ending
on
the last day of the preceding calendar month and (ii) all such information
required pursuant to clause (i) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer.
A-9
The
Servicer shall promptly notify the Trustee, the Master Servicer and the
Depositor (i) of any legal proceedings pending against the Servicer of the
type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Servicer
shall become (but only to the extent not previously disclosed to the Master
Servicer and the Depositor) at any time an affiliate of any of the parties
listed on Exhibit K to this Agreement.
If
so
requested by the Trustee, the Master Servicer or the Depositor on any date
following the date on which information was first provided to the Trustee,
the
Master Servicer and the Depositor pursuant to the preceding sentence, the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in Section
2(a) of the Regulation AB Compliance Addendum set forth in Exhibit I or, if
such
a representation and warranty is not accurate as of the date of such request,
provide reasonable adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
The
Servicer shall provide to the Trustee, the Master Servicer and the Depositor
prompt notice of the occurrence of any of the following: any event of default
under the terms of this Agreement, any merger, consolidation or sale of
substantially all of the assets of the Servicer, the Servicer’s engagement of
any Subservicer, Subcontractor or vendor to perform or assist in the performance
of any of the Servicer’s obligations under this Agreement, any material
litigation involving the Servicer, and any affiliation or other significant
relationship between the Servicer and other transaction parties.
Not
later
than the tenth calendar day of each month (or if such calendar day is not a
Business Day, the immediately preceding Business Day), the Servicer shall
provide to the Trustee, the Master Servicer and the Depositor notice of the
occurrence of any material modifications, extensions or waivers of terms, fees,
penalties or payments relating to the Mortgage Loans during the related Due
Period or that have cumulatively become material over time (Item 1121(a)(11)
of
Regulation AB) along with all information, data, and materials related thereto
as may be required to be included in the related Distribution Report on Form
10-D.
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32.
|
A
new Section 7.06 (Reporting
Requirements of the Commission and Indemnification)
is
hereby added by adding the following paragraphs after Section
7.05:
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Section
7.06 Reporting
Requirements of the Commission and Indemnification
Notwithstanding
any other provision of this Agreement, the Servicer shall (i) agree to such
modifications and enter into such amendments to this Agreement as may be
necessary, in the judgment of the Depositor, the Master Servicer and their
respective counsel, to comply with any rules promulgated by the U.S. Securities
and Exchange Commission (the “Commission”) and any interpretations thereof by
the staff of the Commission (collectively, “SEC Rules”) and (ii) promptly upon
request provide to the Depositor for inclusion in any periodic report required
to be filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), such items of information regarding this Agreement and matters related to
the Servicer, including as applicable (by way of example and not limitation),
a
description of any material litigation or governmental action or proceeding
involving the Servicer or its affiliates (collectively, the “Servicer
Information”), provided,
that
such information shall be required to be provided by the Servicer only to the
extent that such shall be determined by the Depositor in its sole discretion
and
its counsel to be necessary or advisable to comply with any SEC
Rules.
A-10
The
Servicer
hereby
agrees to indemnify and hold harmless the Depositor, the Master Servicer, their
respective officers and directors and each person, if any, who controls the
Depositor or Master Servicer within the meaning of Section 15 of the Securities
Act of 1933, as amended (the “Act”), or Section 20 of the Exchange Act, from and
against any and all losses, claims, expenses, damages or liabilities to which
the Depositor, the Master Servicer, their respective officers or directors
and
any such controlling person may become subject under the Act or otherwise,
as
and when such losses, claims, expenses, damages or liabilities are incurred,
insofar as such losses, claims, expenses, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Servicer
Information or
arise
out of, or are based upon, the omission or alleged omission to state therein
any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Depositor, the Master Servicer, their
respective officers and directors and any such controlling person for any legal
or other expenses reasonably incurred by it or any of them in connection with
investigating or defending any such loss, claim, expense, damage, liability
or
action, as and when incurred; provided,
however,
that
the Servicer
shall
be
liable only insofar as such untrue statement or alleged untrue statement or
omission or alleged omission relates solely to the information in the
Servicer
Information
furnished to the Depositor or Master Servicer by or on behalf of the
Servicer
specifically
in connection with this Agreement.
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33.
|
Section
9.01 (Indemnification; Third Party Claims) is hereby amended by deleting
Subsection (a) and replacing it with the
following:
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The
Servicer shall indemnify the Seller, the Trust Fund, the Trustee, the Depositor
and the Master Servicer and hold each of them 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 any of such parties may sustain in any way related to the failure of the
Servicer to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement (including, but not limited to
its
obligation to provide the certification pursuant to Section 5 of the Regulation
AB Compliance Addendum set forth in Exhibit I) or for any inaccurate or
misleading information provided in the certification required pursuant to
Section 5 of the Regulation AB Compliance Addendum set forth in Exhibit I.
The
Servicer immediately shall notify the Seller, the Master Servicer and the
Trustee or any other relevant party 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 indemnified party, which consent shall not be unreasonably
withheld or delayed) 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 any of such
parties in respect of such claim. The Servicer shall follow any written
instructions received from the Trustee in connection with such claim. The
Servicer shall provide the Trustee (with a copy to the Master Servicer) with
a
written report of all expenses and advances incurred by the Servicer pursuant
to
this Section 9.01, and the Trustee (after consultation with the Master Servicer)
from the assets of the Trust Fund promptly shall reimburse the Servicer for
all
amounts advanced by it pursuant to the preceding sentence except when the claim
is in any way relates to the failure of the Servicer to service and administer
the Mortgage Loans in strict compliance with the terms of this Agreement or
the
gross negligence, bad faith or willful misconduct of this Servicer.
A-11
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34.
|
Section
10.01 (Events of Default) is hereby amended
by:
|
|
(a)
|
changing
any reference to “Purchaser” to “Master
Servicer”
|
|
(b)
|
changing
the reference to “one Business Day” to “two Business Days” in clause (i);
|
|
(c)
|
amending
and restating clause (vii) in its entirety to read as
follows;
|
(vii)
the
Servicer at any time is not either a Xxxxxx Xxx or Xxxxxxx Mac approved
seller/servicer, and the Master Servicer has not terminated the rights and
obligations of the Servicer under this Agreement and replaced the Servicer
with
a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the absence
of
such approval;
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(d)
|
adding
the words “within the applicable cure period” after the word “remedied” in
the second line of the second paragraph;
|
|
(e)
|
adding
the following as clauses (x), (xi) and (xii)
thereof:
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(x)
if
(a) any of the Rating Agencies reduces or withdraws the rating of any of the
certificates issued by the Trust Fund due to a reason attributable to the Seller
or (b) the Seller’s residential primary servicer rating for servicing of
mortgage loans of the same type as the Mortgage Loans issued by any of the
Rating Agencies is reduced below its rating in effect on the related Closing
Date or withdrawn;
(xi)
any
failure by the Servicer (including any Subservicer, any Subcontractor or any
Third-Party Originator) to fulfill delivery obligations as described in Section
7(b)(i) and Section 7(b)(ii) of the Regulation AB Compliance Addendum set forth
in Exhibit I; or
(xii)
except with respect to those items listed in clause (x) above, any failure
by
the Servicer to duly perform, within the required time period, without notice
or
grace period, its obligations to provide any other information, data or
materials required to be provided hereunder, including any items required to
be
included in any Exchange Act report.
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35.
|
Section
10.02 (Waiver of Defaults) is hereby amended by changing the reference
to
“Purchaser” to “Master Servicer with the prior written consent of the
Trustee”.
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|
36.
|
Section
11.01 (Termination) is hereby amended by restating subclause (ii)
thereof
to read as below and adding the following sentence after the first
second
of Section 11.01:
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(ii)
|
the
exercise of the Master Servicer’s right pursuant to Section 10.01 to
terminate this Agreement upon an Event of Default, provided such
termination is also acceptable to the Trustee and the Rating
Agencies.
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A-12
At
the
time of any termination of the Servicer pursuant to Section 11.01, the Servicer
shall be entitled to all accrued and unpaid Servicing Fees and unreimbursed
Servicing Advances and Monthly Advances; provided,
however,
in the
event of a termination for cause under Section 10.01 hereof, such unreimbursed
amounts shall not be reimbursed to the Servicer until such amounts are received
by the Trust Fund from the related Mortgage Loans.
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37.
|
The
first paragraph of Section 11.02 (Termination Without Cause) is hereby
amended by replacing all references to “Purchaser” with
“Seller.”
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|
38.
|
Section
12.01 (Successor to Company) is hereby amended in its entirety to
read as
follows:
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Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Sections 9.04, 10.01, 11.01(ii) or 11.02 the Master
Servicer shall, in accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Servicer’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor meeting the
eligibility requirements of this Agreement, and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement with the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. Any successor
to
the Servicer that is not at that time a Servicer of other mortgage loans for
the
Trust Fund shall be subject to the approval of the Master Servicer, the Seller,
the Trustee and each Rating Agency (as such term is defined in the Trust
Agreement). Unless the successor servicer is at that time a servicer of other
mortgage loans for the Trust Fund, each Rating Agency must deliver to the
Trustee a letter to the effect that such transfer of servicing will not result
in a qualification, withdrawal or downgrade of the then-current rating of any
of
the Certificates. In connection with such appointment and assumption, the Master
Servicer or the Seller, as applicable, may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it
and
such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under this
Agreement. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 12.01 and shall in no event relieve
the Servicer of the representations and warranties made pursuant to Sections
4.01 and 4.02 and the remedies available to the Trust Fund under Section 4.03
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination. The Servicer shall cooperate with the Trustee and
the Master Servicer, as applicable, and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor Servicer, including
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Account or any Escrow Account or thereafter received with respect to the
Mortgage Loans.
A-13
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer and the Master Servicer an instrument (i) accepting
such appointment, wherein the successor shall make an assumption of the due
and
punctual performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 9.04, 10.01, 11.01 or 11.02 shall not affect any claims that the Master
Servicer or the Trustee may have against the Servicer arising out of the
Servicer’s actions or failure to act prior to any such termination or
resignation.
The
Servicer shall deliver within three (3) Business Days of the appointment of
a
successor Servicer the funds in the Account and Escrow Account and all
Collateral Files, Credit Files and related documents and statements held by
it
hereunder to the successor Servicer and the Servicer shall account for all
funds
and shall execute and deliver such instruments and do such other things as
may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Trustee and Master Servicer of such appointment in accordance with the notice
procedures set forth herein.
Except
as
otherwise provided in this Agreement, all reasonable costs and expenses incurred
in connection with any transfer of servicing hereunder (whether as a result
of
termination or removal of the Servicer or resignation of the Servicer or
otherwise), including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or of the
Master Servicer in assuming the responsibilities of the Servicer hereunder,
or
of transferring the Servicing Files and the other necessary data to the
successor servicer shall be paid by the terminated, removed or resigning
Servicer from its own funds without reimbursement.
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39.
|
Section
12.02 (Amendment) is hereby amended by replacing the words “by the Company
and the Purchaser by written agreement signed by the Company and
the
Purchaser” with “by written agreement by the Servicer and the Seller, with
the written consent of the Master Servicer and the
Trustee”.
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|
40.
|
Sections
12.03 (Closing) and 12.05 (Closing Documents) shall be inapplicable
to
this Agreement.
|
|
41.
|
Section
12.06 (Duration of Agreement) is hereby amended by deleting the last
sentence thereof.
|
|
42.
|
Section
12.12 (Assignment by Purchaser) is hereby deleted in its entirety
and
replaced with the following:
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A-14
Acknowledgement.
The Servicer hereby acknowledges that the rights of the Seller under the SWSA,
as amended by this Agreement, will be assigned to SASCO under their respective
Mortgage Loan Sale and Assignment Agreements, and subsequently to the Trust
Fund
under the Trust Agreement and agrees that the Mortgage Loan Sale and Assignment
Agreements and the Trust Agreement will each be an assignment and assumption
agreement or other assignment document required pursuant to Sections 2.02 and
12.12 of the SWSA and will constitute an assignment and assumption of the rights
of the Seller under the SWSA to SASCO and the Trust Fund, as applicable. In
addition, the Trust Fund will make a REMIC election. The Servicer hereby
consents to such assignment and assumption and acknowledges the Trust Fund’s
REMIC election.
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43.
|
Section
12.11 (No Personal Solicitation) is hereby amended by replacing the
words
“the Purchaser” with “the Seller” in each
instance.
|
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44.
|
Intended
Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties
to this
Agreement agree that it is appropriate, in furtherance of the intent
of
such parties as set forth herein, that the Master Servicer and the
Trustee
receive the benefit of the provisions of this Agreement as intended
third
party beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master Servicer
and
the Trustee as if they were parties to this Agreement, and the Master
Servicer and the Trustee shall have the same rights and remedies
to
enforce the provisions of this Agreement as if they were parties
to this
Agreement. The Servicer shall only take direction from the Master
Servicer
(if direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Master Servicer and
the
Trustee hereunder (other than the right to indemnification) shall
terminate upon termination of the Trust Agreement and of the Trust
Fund
pursuant to the Trust Agreement.
|
|
45.
|
Exhibit
C-1 to the SWSA (Custodial Account Certification) is hereby amended
by
replacing “National City Mortgage Co., in trust for Xxxxxx Brothers Bank,
FSB, purchaser of Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2007-FLOW” with “National City Mortgage Co. in
trust for the LMT 2007-5 Trust
Fund.”
|
|
46.
|
Exhibit
C-2 to the SWSA (Custodial Account Letter Agreement) is hereby amended
by
replacing “National City Mortgage Co., in trust for Xxxxxx Brothers Bank,
FSB, purchaser of Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2007-FLOW” with “National City Mortgage Co. in
trust for the LMT 2007-5 Trust
Fund.”
|
|
47.
|
Exhibit
D-1 to the SWSA (Escrow Account Certification) is hereby amended
by
replacing “National City Mortgage Co., in trust for Xxxxxx Brothers Bank,
FSB, purchaser of Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2007-FLOW, and various mortgagors” with
“National City Mortgage Co. in trust for the LMT 2007-5 Trust Fund
and
various mortgagors.”
|
|
48.
|
Exhibit
D-2 to the SWSA (Escrow Account Certification) is hereby amended
by
replacing “National City Mortgage Co., in trust for Xxxxxx Brothers Bank,
FSB, purchaser of Conventional Residential Adjustable and Fixed Rate
Mortgage Loans, Group No. 2007-FLOW, and various mortgagors” with
“National City Mortgage Co. in trust for the LMT 2007-5 Trust Fund
and
various mortgagors.”
|
A-15
|
49.
|
Exhibit
D hereto is added to the SWSA as Exhibit J
thereto.
|
|
50.
|
Exhibit
E hereto is added to the SWSA as Exhibit K
thereto.
|
|
51.
|
Exhibit
I (Regulation AB Compliance) is hereby amended as
follows:
|
|
(a)
|
Section
1 (Intent of the Parties) is hereby amended as follows:
|
|
(i)
|
by
replacing the words “the Purchaser and any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(ii)
|
by
replacing the words “Neither the Purchaser nor any Depositor” with “None
of the Trust Fund, the Depositor, the Trustee and the Master
Servicer”;
|
|
(iii)
|
by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(iv)
|
by
replacing the words “the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor” with “the Trust
Fund, the Depositor, the Trustee or the Master Servicer to deliver
to such
party (including any of its assignees or designees)”;
and
|
|
(v)
|
by
replacing the words “the Purchaser or such Depositor” with “the Trust
Fund, the Depositor, the Trustee or the Master Servicer.”
|
|
(b)
|
Section
2 (Additional Representations and Warranties of the Company) is hereby
amended as follows:
|
|
(i)
|
by
replacing the words “the Purchaser and to any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(ii)
|
by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(iii)
|
by
replacing the words “the Purchaser or such Depositor” with “the Trust
Fund, the Depositor, the Trustee or the Master Servicer” in each instance;
and
|
|
(iv)
|
by
replacing Section 2(a)(vii) in its entirety with the
following:
|
(vii)
there are no affiliations, relationships or transactions relating to a Seller,
the Servicer, any Subservicer or any Third-Party Originator with respect to
any
Securitization Transaction and any party thereto listed on Exhibit K hereto
of a
type described in Item 1119 of Regulation AB.
|
(c)
|
Section
3 (Information to Be Provided by the Company) is hereby amended as
follows:
|
|
(i)
|
by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
A-16
|
(ii)
|
by
replacing the words “the Purchaser and such Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(iii)
|
by
replacing the words “the Purchaser and any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(iv)
|
by
replacing the words “as reasonably identified by the Purchaser” with “as
reasonably identified by the Trust Fund, the Depositor, the Trustee
or the
Master Servicer” in each instance;
|
|
(v)
|
by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(vi)
|
by
replacing the words “the Purchaser or the Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(vii)
|
by
replacing the words “the Purchaser or Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(viii)
|
by
replacing the words “the Purchaser or such Depositor” with “the Trust
Fund, the Depositor, the Trustee or the Master Servicer” in each instance;
and
|
|
(ix)
|
by
amending Section 3 (a)(D) to read in its entirety as
follows:
|
(D)
as
promptly as practicable following notice to the Company, a description of any
affiliation or relationship between a Seller or the Servicer, each Third-Party
Originator or each Subservicer, as applicable, and any of the parties listed
on
Exhibit K hereto.
|
(d)
|
Section
4 (Servicer Compliance Statement) is hereby amended as
follows:
|
|
(i)
|
by
replacing the words “the Purchaser and any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance; and
|
|
(ii)
|
by
replacing the words “the Purchaser and such Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance.
|
|
(e)
|
Section
5 (Report on Assessment of Compliance and Attestation) is hereby
amended
as follows:
|
|
(i)
|
the
first sentence of subsection (a)(1) is hereby amended as follows:
|
deliver
to the Master Servicer, the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Master Servicer, the Purchaser and
such
Depositor) regarding the Company’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, prior to the closing
date of any Securitization Transaction and as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB.
|
(ii)
|
by
replacing the words “the Purchaser and such Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
A-17
|
(iii)
|
by
replacing the words “the Purchaser and any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(iv)
|
by
replacing the words “the Purchaser, any Depositor and any other Person”
with “the Trust Fund, the Depositor, the Trustee, the Master Servicer and
any other Person” in each instance;
and
|
|
(v)
|
by
replacing clause (a)(iii) in its entirety with the
following:
|
(iii)
cause (x) each Subservicer and (y) each Subcontractor determined by the Company
pursuant to Section 6 of this Regulation AB Compliance Addendum to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB (each, a “Participating Entity”) and for which the Company does
not elect to take responsibility for assessing compliance with the Servicing
Criteria in accordance with Regulation AB Telephone Interpretation 17.06, to
deliver to the Purchaser, the Master Servicer, the Trustee, the Trust Fund
and
any Depositor an assessment of compliance and accountants’ attestation as and
when provided in paragraphs (i) and (ii) of this Section 5(a); and
|
(f)
|
Section
6 (Use of Subservicers and Subcontractors) is hereby amended as
follows:
|
|
(i)
|
by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each
instance;
|
|
(ii)
|
by
replacing the words “the Purchaser and any Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance;
|
|
(iii)
|
by
replacing clause (b)(iii) with the
following:
|
(iii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor for which the Company does not elect
to take responsibility for assessing compliance with the Servicing Criteria
in
accordance with Regulation AB Telephone Interpretation 17.06 identified pursuant
to clause (ii) of this paragraph.
|
(iv)
|
By
replacing the last sentence of the second paragraph of subsection
(b) with
the following:
|
The
Company shall be responsible for obtaining from each Subcontractor for which
the
Company does not elect to take responsibility for assessing compliance with
the
Servicing Criteria in accordance with Regulation AB Telephone Interpretation
17.06 and delivering to the Purchaser, the Master Servicer, the Trustee, the
Trust Fund or any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 5 of this
Regulation AB Compliance Addendum, in each case as and when required to be
delivered.
|
(v)
|
by
replacing the words “(or any designee of the Depositor, such as a master
servicer or administrator)” with “(or any designee of such party)” in each
instance; and
|
A-18
|
(vi)
|
by
replacing the words “the Purchaser and such Depositor” with “the Trust
Fund, the Depositor, the Trustee and the Master Servicer” in each
instance.
|
|
(g)
|
Section
7 (Indemnification; Remedies) is hereby amended as
follows:
|
|
(i)
|
subparagraph
(a) of such section is hereby amended by (1) replacing the words
“the
Purchaser, each affiliate of the Purchaser” with “the Trust Fund, the
Depositor, the Trustee, the Master Servicer,” and (2) deleting the words
“or the Depositor” in its entirety;
|
|
(ii)
|
subparagraph
(b)(iii) of such section is hereby amended by (1) replacing the words
“the
Purchaser (or any designee of the Purchaser, such as a master servicer)
and any Depositor” with “the Trust Fund, the Depositor, the Trustee and
the Master Servicer,” (2) replacing the words “the Purchaser (or such
designee) or such Depositor” with “such party” in each instance and (3) by
replacing the words “the Purchaser or any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
|
|
(iii)
|
by
replacing the words “Neither the Purchaser nor any Depositor” with “None
of the Trust Fund, the Depositor, the Trustee or the Master Servicer” in
each instance;
|
|
(iv)
|
by
replacing the words “the Purchaser, any Depositor” with “the Trust Fund,
the Depositor, the Trustee or the Master Servicer” in each instance;
and
|
|
(v)
|
by
replacing the words “the Purchaser or Depositor” with “the Trust Fund, the
Depositor, the Trustee or the Master Servicer” in each
instance.
|
|
(h)
|
Exhibit
A to the Regulation AB Compliance Addendum is hereby replaced with
Exhibit
F attached to this Agreement.
|
|
(i)
|
Exhibit
B to the Regulation AB Compliance Addendum is hereby replaced with
Exhibit
G attached to this Agreement.
|
X-00
XXXXXXX
X
XXXX
X-0
EXECUTION
XXXXXX
BROTHERS BANK, FSB,
Purchaser
and
NATIONAL
CITY MORTGAGE CO.,
Company
AMENDED
AND RESTATED FLOW MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING
AGREEMENT
Dated
as
of May 1, 2007
Conventional
Residential Fixed and
Adjustable
Rate Mortgage Loans
Group
No.
2007-FLOW
TABLE
OF
CONTENTS
Page
ARTICLE
I.
DEFINITIONS
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 Mortgage Files; Maintenance
of Servicing
Files.
|
15
|
|
Section
2.02.
|
Books
and Records; Transfers of Mortgage Loans.
|
15
|
|
Section
2.03.
|
Custodial
Agreement; Delivery of Documents.
|
16
|
|
Section
2.04.
|
MERS
Designated Mortgage Loans.
|
18
|
ARTICLE
III.
PURCHASE
PRICE
ARTICLE
IV.
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
|
Section
4.01.
|
Company
Representations and Warranties.
|
19
|
|
Section
4.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
22
|
|
Section
4.03.
|
Remedies
for Breach of Representations and Warranties.
|
37
|
|
Section
4.04.
|
Restrictions
and Requirements Applicable in the Event that a Mortgage Loan
is Acquired
by a REMIC.
|
38
|
|
Section
4.05.
|
Due
Diligence.
|
40
|
ARTICLE
V.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
5.01.
|
Company
to Act as Servicer.
|
41
|
|
Section
5.02.
|
Liquidation
of Mortgage Loans.
|
42
|
|
Section
5.03.
|
Collection
of Mortgage Loan Payments.
|
43
|
|
Section
5.04.
|
Establishment
of and Deposits to Custodial Account.
|
43
|
|
Section
5.05.
|
Permitted
Withdrawals From Custodial Account.
|
45
|
-ii-
|
Section
5.06.
|
Establishment
of and Deposits to Escrow Account.
|
46
|
|
Section
5.07.
|
Permitted
Withdrawals From Escrow Account.
|
47
|
|
Section
5.08.
|
Payment
of Taxes, Insurance and Other Charges.
|
47
|
|
Section
5.09.
|
Protection
of Accounts.
|
48
|
|
Section
5.10.
|
Maintenance
of Hazard Insurance.
|
49
|
|
Section
5.11.
|
Maintenance
of Mortgage Impairment Insurance.
|
50
|
|
Section
5.12.
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
51
|
|
Section
5.13.
|
Inspections.
|
51
|
|
Section
5.14.
|
Restoration
of Mortgaged Property.
|
51
|
|
Section
5.15.
|
Maintenance
of PMI and/or LPMI Policy; Claims.
|
52
|
|
Section
5.16.
|
Title,
Management and Disposition of REO Property.
|
53
|
|
Section
5.17.
|
Real
Estate Owned Reports.
|
55
|
|
Section
5.18.
|
Liquidation
Reports.
|
56
|
|
Section
5.19.
|
Notification
of Adjustments.
|
56
|
|
Section
5.20.
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
56
|
|
Section
5.21.
|
Waiver
of Prepayment Charges.
|
56
|
|
Section
5.22.
|
Credit
Reporting.
|
57
|
|
Section
5.23.
|
Safeguarding
Customer Information
|
57
|
|
Section
5.24.
|
PMI
Obligations
|
58
|
ARTICLE
VI.
PAYMENTS
TO PURCHASER
|
Section
6.01.
|
Remittances.
|
58
|
|
Section
6.02.
|
Statements
to Purchaser.
|
58
|
|
Section
6.03.
|
Monthly
Advances by Company.
|
59
|
ARTICLE
VII.
GENERAL
SERVICING PROCEDURES
|
Section
7.01.
|
Transfers
of Mortgaged Property.
|
59
|
|
Section
7.02.
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
60
|
|
Section
7.03.
|
Servicing
Compensation.
|
61
|
|
Section
7.04.
|
Right
to Examine Company Records.
|
61
|
|
Section
7.05.
|
Use
of Subservicers and Subcontractors.
|
61
|
ARTICLE
VIII.
AGENCY
TRANSFER; SECURITIZATION TRANSACTION
|
Section
8.01.
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an
Agency
Transfer, or a Securitization Transaction on One or More Reconstitution
Dates.
|
62
|
|
Section
8.02.
|
Transfer
of Servicing Following Reconstitution.
|
64
|
-iii-
|
Section
8.03.
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
65
|
|
Section
8.04.
|
Transfer
Of Servicing.
|
66
|
|
Section
8.05.
|
Compliance
with Regulation AB
|
66
|
ARTICLE
IX.
THE
COMPANY
|
Section
9.01.
|
Indemnification;
Third Party Claims.
|
66
|
|
Section
9.02.
|
Merger
or Consolidation of the Company.
|
67
|
|
Section
9.03.
|
Limitation
on Liability of Company and Others.
|
67
|
|
Section
9.04.
|
Limitation
on Resignation and Assignment by Company.
|
68
|
|
Section
9.05.
|
Limitation
on Assignment by the Company.
|
68
|
ARTICLE
X.
DEFAULT
|
Section
10.01.
|
Events
of Default.
|
69
|
|
Section
10.02.
|
Waiver
of Defaults.
|
70
|
ARTICLE
XI.
TERMINATION
|
Section
11.01.
|
Termination.
|
71
|
|
Section
11.02.
|
Termination
Without Cause.
|
71
|
ARTICLE
XII.
MISCELLANEOUS
PROVISIONS
|
Section
12.01.
|
Successor
to Company.
|
72
|
|
Section
12.02.
|
Amendment.
|
73
|
|
Section
12.03.
|
Closing.
|
73
|
|
Section
12.04.
|
Closing
Documents.
|
74
|
|
Section
12.05.
|
Place
of Delivery and Governing Law.
|
75
|
|
Section
12.06.
|
Duration
of Agreement.
|
76
|
|
Section
12.07.
|
Notices.
|
76
|
|
Section
12.08.
|
Severability
of Provisions.
|
76
|
|
Section
12.09.
|
Relationship
of Parties.
|
77
|
|
Section
12.10.
|
Execution;
Successors and Assigns.
|
77
|
|
Section
12.11.
|
Assignments
of Mortgage; Costs.
|
77
|
|
Section
12.12.
|
Assignment
by Purchaser.
|
78
|
|
Section
12.13.
|
No
Personal Solicitation.
|
78
|
|
Section
12.14.
|
Confidential
Information
|
78
|
-iv-
|
Section
12.15.
|
Appointment
and Designation of Master Servicer.
|
79
|
|
Section
12.16.
|
Waivers;
Other Agreements.
|
79
|
|
Section
12.17.
|
Further
Agreements.
|
80
|
|
Section
12.18.
|
Intention
of the Parties.
|
80
|
|
Section
12.19.
|
Exhibits.
|
80
|
|
Section
12.20.
|
General
Interpretive Principles.
|
80
|
|
Section
12.21.
|
Documents
Mutually Drafted.
|
81
|
EXHIBITS
|
EXHIBIT
A-1
|
ACKNOWLEDGMENT
AND CONVEYANCE AGREEMENT
|
|
EXHIBIT
A-2
|
MORTGAGE
LOAN SCHEDULE DATA FIELDS
|
|
EXHIBIT
B
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
C-1
|
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
|
|
EXHIBIT
C-2
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
D-1
|
FORM
OF ESCROW ACCOUNT CERTIFICATION
|
|
EXHIBIT
D-2
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
E-1
|
FORM
OF MONTHLY REMITTANCE ADVICE
|
|
EXHIBIT
E-2
|
STANDARD
LAYOUT FOR DEFAULTED LOAN REPORT
|
|
EXHIBIT
F
|
COMPANY’S
OFFICER’S CERTIFICATE
|
|
EXHIBIT
G
|
FORM
OF OPINION OF COUNSEL TO COMPANY
|
|
EXHIBIT
H-1
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
H-2
|
SECURITY
RELEASE CERTIFICATION
|
|
EXHIBIT
I
|
REGULATION
AB COMPLIANCE
|
-v-
This
is
an Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement for conventional fixed and adjustable rate residential first
and
second lien mortgage loans (the “Agreement”), dated as of May 1, 2007, by and
between Xxxxxx Brothers Bank, FSB, as purchaser (the “Purchaser”),
and
National City Mortgage Co., as seller and servicer (the “Company”).
WITNESSETH:
WHEREAS,
the Purchaser and the Company are parties to a seller’s warranties and servicing
agreement, dated as of August 1, 2001, as amended on November 21, 2001,
October
25, 2002, January 14, 2003, September 1, 2006, September 16, 2006 and November
2, 2006 (as amended, collectively, the “Existing Flow Agreement”);
WHEREAS,
the Purchaser and the Company desire to amend and restate the Existing
Flow
Agreement in its entirety pursuant to the terms of this Agreement;
WHEREAS,
the Company has agreed to sell from time to time to the Purchaser, and
the
Purchaser has agreed to Purchase from time to time from the Company, certain
fixed and adjustable rate residential first and second lien mortgage loans
(the
“Mortgage Loans”) on a servicing retained basis as described herein, and which
shall be delivered as whole loans on the related Closing Date, as defined
below;
WHEREAS,
each Mortgage Loan will be secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule;
and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of conveyance,
servicing and control of the Mortgage Loans.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Company
agree as follows:
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows (except as otherwise agreed in writing
by
the parties):
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) 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 and (ii) in accordance with all applicable state, federal and local
laws.
Acknowledgment
and Conveyance Agreement:
The
agreement, substantially in the form of Exhibit A-1 hereto to be executed
by the
Company and the Purchaser on each Closing Date.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
The
sale or transfer by Purchaser of some or all of the Mortgage Loans to Xxxxxx
Xxx
under its Cash Purchase Program or its MBS Swap Program (Special Servicing
Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx Xxxx Program or Gold PC
Program,
retaining the Company as “servicer” thereunder.
Agreement:
This
Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement and all amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing Fees and Prepayment
Charges (to the extent in accordance with clause (iii) of Section 5.04)
attributable to the Mortgage Loans, including but not limited to, late
charges,
fees received with respect to checks or bank drafts returned by the related
bank
for non-sufficient funds, assumption fees, optional insurance administrative
fees and all other incidental fees and charges. The Company shall retain
all
Ancillary Income as servicing compensation, to the extent not required
to be
deposited into the Custodial Account.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination
of the
related Mortgage Loan as the value of the Mortgaged Property.
Approved
Flood Policy Insurer:
Any of
the following insurers: Flood Data Services, Inc., Flood Zone, Inc., GEOTrac,
or
TransAmerica Flood Hazard Certification, or such other flood policy insurer
acceptable to the Purchaser in its sole discretion.
Approved
Tax Service Contract Provider:
Any of
the following providers: First American, TransAmerica, Lereta or Fidelity,
or
such other providers as identified in the related Purchase Price and Terms
Letter.
ARM
Mortgage Loan:
A Mortgage Loan pursuant to which the interest rate shall be adjusted from
time
to time in accordance with the related Mortgage Note.
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 in the case of a MERS Designated Mortgage Loan, a confirmed
electronic transmission to MERS, identifying a transfer of ownership of
the
related Mortgage to the Purchaser or its designee.
-2-
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, as 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.
Balloon
Mortgage Loan:
Any
Mortgage Loan (a) that requires only payments of interest until the stated
maturity date of the Mortgage Loan or (b) for which Monthly Payments of
principal (not including the payment due on its stated maturity date) are
based
on an amortization schedule that would be insufficient to fully amortize
the
principal thereof by the stated maturity date of the Mortgage Loan.
BIF:
The
Bank Insurance Fund, or any successor thereto.
BPO:
A
broker’s price opinion obtained by the Purchaser.
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 State of New York are authorized or obligated
by
law or executive order to be closed.
Closing
Date:
Means a
date on which the Company shall sell and the Purchaser shall purchase Mortgage
Loans under this Agreement as set forth in the related Purchase Price and
Terms
Letter.
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.
Combined
Loan-to-Value Ratio or CLTV:
With respect to any Second Lien Mortgage Loan, the ratio (expressed as
a
percentage) of (a) the sum of (i) the outstanding principal balance of
the
Mortgage Loan at origination and (ii) the original principal amount of
any
related First Lien Mortgage Loan (as of the Cut-off Date unless otherwise
indicated) and (b) the lesser of (i) the Appraised Value of the Mortgaged
Property and (ii) if the Mortgage Loan was made to finance the acquisition
of
the related Mortgaged Property, the purchase price of the Mortgaged Property,
expressed as a percentage.
Commission:
The
United States Securities and Exchange Commission.
Company:
National City Mortgage Co., or its successor in interest or assigns, or
any
successor to the Company under this Agreement appointed as herein
provided.
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.
-3-
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
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.
Custodial
Account:
The
separate trust account created and maintained pursuant to Section
5.04.
Custodial
Agreement:
The
agreement(s) governing the retention of the originals of each Mortgage
Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents. If
more than
one Custodial Agreement is in effect at any given time, all of the individual
Custodial Agreements shall collectively be referred to as the “Custodial
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 therein
provided.
Customer
Information:
The
nonpublic personal information (as defined in 15 U.S.C. § 6809(4)) of the
Purchaser's former, current or prospective customers or employees, including
the
Mortgagors (and/or clients or prospective customers of the Purchaser's
parent,
affiliated or subsidiary companies) held or received by the Company in
connection with the performance of its obligations under this Agreement,
including, but not limited to (i) an individual's name, address, e-mail
address,
IP address, telephone number and/or social security number, (ii) the fact
that
an individual has a relationship with the Company or the Purchaser and/or
its
parent, affiliated or subsidiary companies or (iii) an individual's account
information.
Cut-off
Date:
With
respect to any Mortgage Loan purchased on a Closing Date, the date as may
be set
forth in the related Purchase Price and Terms Letter.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the
terms
of this Agreement.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Disqualified
Organization:
An
organization defined as such in Section 860E(e) of the Code.
Distressed
Mortgage Loan:
As of
any Determination Date, any Mortgage Loan that is delinquent in payment
for a
period of ninety (90) days or more, without giving effect to any grace
period
permitted by the related Mortgage Loan, or for which the Company has accepted
a
deed in lieu of foreclosure.
-4-
Distressed
Mortgage Loan Transfer Date:
For
each REO Property, the fourth calendar day of each month, or, if such day
is not
a Business Day, the next succeeding Business Day, and for each other Mortgaged
Property, upon thirty (30) days notice, or such other day as the Purchaser
may
determine that the servicing function may be transferred to a successor
servicer. Each transfer of servicing on a Distressed Mortgage Loan Transfer
Date
shall be deemed to be effective immediately following the close of business
on
such Distressed Mortgage Loan Transfer Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace. With respect to the Mortgage Loans for which payment
from
the Mortgagor is due on a day other than the first day of the month, such
Mortgage Loans will be treated as if the Monthly Payment is due on the
first day
of the month following the actual Due Date.
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 on the first
day of
the month of the Remittance Date.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment
provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States
of
America, or any agency or instrumentality of the United States of America
the
obligations of which are backed by the full faith and credit of the United
States of America; and
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state
thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term
debt
obligations of such depository institution or trust company (or, in the
case of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by Xxxxx’x Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by Xxxxx’x
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least
“Aa” by
Xxxxx’x Investors Service, Inc.;
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations; provided, further, that upon a Securitization Transaction,
the
Eligible Investments permitted thereunder shall be set forth in the related
Reconstitution Agreement.
-5-
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 5.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
5.06.
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
Mae:
Xxxxxx
Xxx, or any successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Selling Guide and the Xxxxxx Mae Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FICO
Score:
A
statistical credit score obtained by mortgage lenders in connection with
the
loan application to help assess a borrower’s credit worthiness.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
5.12.
First
Lien:
With respect to any Second Lien Mortgage Loan, the mortgage loan relating
to the
corresponding Mortgaged Property having a first priority lien.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Mac Selling Guide and the Xxxxxxx Mac Servicing Guide and all amendments
or additions thereto.
Gross
Margin:
With
respect to each ARM Mortgage Loan, the fixed percentage amount set forth
in the
related Mortgage Note which amount is added to the Index in accordance
with the
terms of the related Mortgage Note to determine, on each Interest Rate
Adjustment Date, the Mortgage Interest Rate for such Mortgage Loan.
-6-
Index:
With
respect to each ARM Mortgage Loan, the index identified in the related
Purchase
Price and Terms Letter.
Initial
Mortgage Interest Rate Cap:
With
respect to each ARM Mortgage Loan, the limit on the initial Mortgage Interest
Rate adjustment such that, as to each Mortgage Loan on the initial Interest
Rate
Adjustment Date, no change in the Mortgage Interest Rate shall exceed 3%
above
the Mortgage Interest Rate in effect immediately prior to the initial Interest
Rate Adjustment Date of the related Mortgage Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
The
date on which an adjustment to the Mortgage Interest Rate on a Mortgage
Note
becomes effective.
Investor:
With
respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The
provision of the Mortgage Note related to each ARM Mortgage Loan which
provides
for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage
Interest
Rate during the term of each Mortgage Loan shall not at any time exceed
the
Mortgage Interest Rate at the time of origination of such Mortgage Loan
by more
than the amount per annum set forth on the Mortgage Loan Schedule.
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 (expressed as a percentage) of
the
outstanding principal amount of the Mortgage Loan as of the related Cut-off
Date
(unless otherwise indicated) to the lesser of (a) the Appraised Value of
the
Mortgaged Property and (b) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property.
LPMI
Fee:
With
respect to each LPMI Loan, the portion of the Mortgage Interest Rate as
set
forth on the related Mortgage Loan Schedule (which shall be payable solely
from
the interest portion of Monthly Payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds), which, during such period prior to the
required cancellation of the LPMI Policy, shall be used to pay the premium
due
on the related LPMI Policy.
LPMI
Loan:
A
Mortgage Loan for which an LPMI Policy has been issued.
LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer
pursuant to which the related premium is to be paid from payments of interest
made by the Mortgagor.
-7-
Master
Servicer:
Aurora
Loan Services LLC or such other master servicer as the Purchaser may designate
by written instruction to the Company.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation,
and its
successors in interest.
MERS
Designated Mortgage Loan:
Mortgage Loans for which (a) the Company has designated or will designate
MERS
as, and has taken or will take such action as is necessary to cause MERS
to be,
the mortgagee of record, as nominee for the Company, in accordance with
the MERS
Procedures Manual and (b) the Company has designated or will designate
the
Purchaser as the Investor on the MERS System.
MERS
Identification Number:
The
eighteen digit number permanently assigned to each MERS Designated Mortgage
Loan.
MERS
Procedures Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise
modified
from time to time.
MERS
Report:
The
report from the MERS System listing MERS Designated Mortgage Loans.
MERS
System:
MERS
mortgage electronic registry system, as more particularly described in
the MERS
Procedures Manual.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan following Reconstitution,
an amount equal to the Monthly Payment (with the interest portion of such
Monthly Payment adjusted to the Mortgage Loan Remittance Rate) which was
due on
the Mortgage Loan on the Due Date in the related Due Period, and (i) which
was
delinquent immediately preceding the Determination Date and (ii) which
was not
the subject of a previous Monthly Advance.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple
in real
property securing the Mortgage Note or a lien upon a leasehold estate,
as the
case may be or the Security Agreement securing the Mortgage Note for a
Cooperative Loan.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit B
annexed
hereto, and any additional documents required to be added to the Mortgage
File
pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in
Section
5.11.
-8-
Mortgage
Interest Rate:
With
respect to each fixed rate Mortgage Loan, the fixed annual rate of interest
borne on a Mortgage Note. With respect to each ARM Mortgage Loan, the annual
rate of interest borne on a Mortgage Note, as adjusted from time to time
in
accordance with the provisions of the Mortgage Note, without regard to
any
modification of the Mortgage Note.
Mortgage
Interest Rate Cap:
With
respect to each ARM Mortgage Loan, the limit on each Mortgage Interest
Rate
adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on
the
Mortgage Loan Schedule annexed as Annex 1 to the related Acknowledgment
and
Conveyance Agreement, which Mortgage Loan includes without limitation the
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:
The
documents contained in the Mortgage File pertaining to each Mortgage
Loan.
Mortgage
Loan Package:
A group
of Mortgage Loans sold to the Purchaser by the Company on a Closing Date
and set
forth on the Mortgage Loan Schedule annexed to the related Acknowledgment
and
Conveyance Agreement.
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 and, with respect to each LPMI Loan, the LPMI Fee.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed as Annex 1 to each Acknowledgment and
Conveyance Agreement, each such schedule setting forth the data and information
listed on Exhibit A-2 with respect to each Mortgage Loan.
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
leasehold estate, if applicable) or with respect to a Cooperative Loan,
the
Cooperative Apartment.
Mortgagor:
The
obligor on a Mortgage Note.
Non-recoverable
Advance:
Any
Servicing Advance or Monthly Advance in respect of a Mortgage Loan or REO
Property that, pursuant to Accepted Servicing Practices, would not, in
the
reasonable judgment of the Company, be recoverable from collections and
other
proceeds on such Mortgage Loan or REO Property.
-9-
Notice
Date:
The
fifteenth calendar day preceding each Distressed Mortgage Loan Transfer
Date,
or, if such day is not a Business Day, the immediately preceding Business
Day.
Officer’s
Certificate:
A
certificate signed by (a) the Chairman of the Board, the Vice Chairman
of the
Board, the President or a Vice President and (b) the Treasurer, 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, provided that any Opinion of Counsel relating
to
(a) qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC Provisions, must be an opinion of counsel who (i) is in fact
independent of the Company and any Master Servicer of the Mortgage Loans,
(ii) does not have any material direct or indirect financial interest in
the Company or any Master Servicer of the Mortgage Loans or in an Affiliate
of
any such entity and (iii) is not connected with the Company or any Master
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Periodic
Rate Cap:
The
provision of each Mortgage Note related to each ARM Mortgage Loan which
provides
for an absolute maximum amount by which the Mortgage Interest Rate therein
may
increase or decrease on an Interest Rate Adjustment Date above or below
the
Mortgage Interest Rate previously in effect. The Periodic Rate Cap for
each ARM
Mortgage Loan is the rate set forth on the related Mortgage Loan Schedule.
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
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Security
Agreement.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage
Loan
during the immediately preceding Principal Prepayment Period in accordance
with
the terms of the related Mortgage Note.
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 or other occupancy agreement in
accordance with the Xxxxxx Xxx Guides on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
-10-
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment
in full
or in part during any Due Period, which Principal Prepayment was applied
to such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net the related Servicing Fee) that would have accrued
on
the amount of such Principal Prepayment during the period commencing on
the date
as of which such Principal Prepayment was applied to such Mortgage Loan
and
ending on the day immediately preceding such Due Date, inclusive.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as
the
average rate in the “Money Rates” section of 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.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Company
in
exchange for the Mortgage Loans as calculated in Article III of this
Agreement.
Purchase
Price and Terms Letter:
With
respect to each purchase of a Mortgage Loan Package hereunder, that certain
letter agreement by and between the Company and the Purchaser setting forth
the
general terms, conditions and portfolio characteristics for each Mortgage
Loan
Package to be purchased hereunder as of any Closing Date.
Purchaser:
Xxxxxx
Brothers Bank, FSB or its successor in interest or assigns or any successor
to
the Purchaser under this Agreement as herein provided; provided, however,
that,
for the purpose of compliance with Regulation AB, references to the Purchaser
shall be deemed to include any assignees or designees of the Purchaser,
such as
any Depositor, a master servicer or a trustee.
Qualified
Appraiser:
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 such appraiser
and the
appraisal made by such appraiser both satisfy the requirements of Title
XI of
the Federal Institutions Reform, Recovery and Enforcement Act of 1989 and
the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF
or the
SAIF and the debt obligations of which are rated AA or better by Standard
&
Poor’s, A Division of The McGraw Hill Companies.
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 Xxx or Xxxxxxx Mac.
-11-
Rating
Agency:
Any of
Fitch, Inc., Xxxxx’x Investors Service, Inc. or Standard & Poor’s Rating
Services, A Division of The XxXxxx-Xxxx Companies, Inc., or their respective
successors or such other Rating Agency as may be designated by the
Purchaser.
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, Whole Loan Transfer or Agency Transfer.
Reconstitution
Agreement:
Any
servicing agreement relating to a Reconstitution.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under
this
Agreement shall be removed from this Agreement and reconstituted as part
of an
Agency Transfer or a Securitization Transaction pursuant to Section 8.01
hereof.
On such date or dates, the Mortgage Loans transferred shall cease to be
covered
by this Agreement and the Company’s servicing responsibilities shall cease under
this Agreement with respect to the related transferred Mortgage
Loans.
Record
Date:
The
close of business of the last Business Day of the month preceding the month
of
the related Remittance Date.
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
Documents:
The
document or documents creating and governing the administration of a
REMIC.
REMIC
Eligible Mortgage Loan:
A
Mortgage Loan held by a REMIC which satisfies and/or complies with all
applicable REMIC Provisions.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 86OG of Subchapter M of Chapter 1, Subtitle A of the
Code,
and related provisions, and 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.
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REO
Disposition Fee:
A fee
of $1500 payable to the Company upon the liquidation of an REO
property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
5.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchasers
through
foreclosure or by deed in lieu of foreclosure, as described in Section
5.16.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (a) the Stated Principal
Balance
of the Mortgage Loan plus (b) interest on such Stated Principal Balance
at the
Mortgage Interest Rate from the date on which interest has last been paid
and
distributed to the Purchaser to the date of repurchase, less amounts received,
if any, plus amounts advanced, if any, by any servicer, in respect of such
repurchased Mortgage Loan plus (c) any costs and damages incurred by the
trust
with respect to any securitization of the Mortgage Loan in connection with
any
violation by such Mortgage Loan of any predatory- or abusive-lending
law.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second lien on the related Mortgaged
Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Security
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.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ 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 Sections 5.01,
5.02,
5.08, 5.10, 5.13 and 5.14.
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 computed. 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, Condemnation Proceeds and Insurance
Proceeds, to the extent permitted by Section 5.05) of such Monthly Payment
collected by the Company.
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Servicing
Fee Rate:
Such
amount set forth in the related Purchase Price and Terms Letter.
Servicing
File:
With
respect to each Mortgage Loan the file retained by the Company consisting
of
originals of all documents in the Mortgage File, which are not delivered
to the
Purchaser or the Purchaser’s designee, and copies of the Mortgage Loan Documents
listed on Exhibit
B
hereto.
Special
Servicer:
Such
Person designated by the Purchaser in its sole discretion to assume the
servicing of Distressed Mortgage Loans pursuant to Section 11.02.
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.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate or other contractual agreement
in
accordance with the Xxxxxx Xxx Guides 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.
Tax
Returns:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule
Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable
Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of
any
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the certificate
holders under a REMIC or filed with the Internal Revenue Service or any
other
governmental taxing authority under any applicable provisions of federal,
state
or local tax laws.
Texas
Home Equity Loan:
An
extension of credit described in Section 50(a)(6), Article XVI of the Texas
Constitution.
Underwriting
Guidelines:
The
underwriting guidelines of the Company attached as Annex 3 to the related
Acknowledgment and Conveyance Agreement.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction or Agency Transfer.
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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 Mortgage Files; Maintenance of Servicing
Files.
On
each
Closing Date, the Company, simultaneously with the execution and delivery
of the
related Acknowledgment and Conveyance Agreement, does hereby sell, transfer,
assign, set over and convey to the Purchaser, without recourse, but subject
to
the terms of this Agreement, all right, title and interest of the Company
in and
to the Mortgage Loans included in the related Mortgage Loan Package, together
with Mortgage Files and all rights and obligations arising under the documents
contained therein for each Mortgage Loan. Pursuant to Section 2.03 hereof,
on or
prior to the date set forth in the related Purchase Price and Terms Letter,
the
Company shall deliver the Mortgage File for each Mortgage Loan included
in the
related Mortgage Loan Package to the Purchaser or its designee.
The
contents of each Mortgage File and Servicing 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 Mortgage File and the originals of the documents
in each Mortgage File not delivered to the Custodian. The possession of
any
portion of the Servicing File by the Company is at the will of the Purchaser
for
the sole purpose of facilitating servicing of 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 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. Each Servicing File shall be segregated
from the other books and records of the Company and shall be appropriately
marked to clearly reflect the sale of the related Mortgage Loan to the
Purchaser. 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 hereto.
Section
2.02. Books
and Records; Transfers of Mortgage Loans.
Record
title to each Mortgage and the related Mortgage Note as of the applicable
Closing Date shall be in the name of the Purchaser or as the Purchaser
shall
designate. All rights arising out of the Mortgage Loans including, but
not
limited to, all funds received by the Company after the related Cut-off
Date on
or in connection with a Mortgage Loan shall be vested in the Purchaser;
provided, however, that all funds received on or in connection with a Mortgage
Loan shall be received and held by the Company in trust for the benefit
of the
Purchaser as owner of the Mortgage Loans, for the sole purpose of facilitating
the servicing and the supervision of the servicing of the Mortgage Loans.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection during business hours by the Purchaser or its
designee
the related Servicing File during the time the Purchaser retains ownership
of a
Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
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The
sale
of each Mortgage Loan in a Mortgage Loan Package 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 Mae 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. To the extent that original documents are not required for
purposes
of realization of Liquidation Proceeds, Condemnation 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 Xxx Selling and Servicing
Guide, as
amended from time to time.
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 not less than ten of
the
Mortgage Loans (subject to the immediately succeeding sentence), provided,
however,
that
with respect to each Mortgage Loan Package, in no event shall there be
more than
three Persons at any given time having the status of “Purchaser” hereunder. In
the event that the Purchaser sells and transfers less than ten (10) of
the
Mortgage Loans, the Purchaser and the Seller agree to work together to
determine
a compensation level that is reasonable for the services to be provided
by the
Seller. 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.
Section
2.03. Custodial
Agreement; Delivery of Documents.
Not
later
than the date set forth in the related Purchase Price and Terms Letter,
the
Company shall deliver and release to the Custodian those Mortgage Loan
Documents
as required by this Agreement with respect to each Mortgage Loan in the
related
Mortgage Loan Package.
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On
or
prior to the related Closing Date, the Custodian shall certify its receipt
of
all such Mortgage Loan Documents 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 shall be
responsible for maintaining the Custodial Agreement and shall pay all fees
and
expenses of the Custodian. On
the
related Closing Date, the Company shall release any interest that it has
in the
Mortgage Loan Documents upon its receipt of the Purchase Price for the
Mortgage
Loans. Within thirty (30) days of receipt by the Company of any notice
from the
Purchaser or the Custodian that any of the Mortgage Loan Documents is missing,
does not appear regular on its face (i.e., is mutilated, damaged, defaced,
torn
or otherwise physically altered) or appears to be unrelated to the Mortgage
Loans identified in the Mortgage Loan Schedule (each, a “Material
Defect”),
the
Company shall cure such Material Defect (and, in such event, the Company
shall
provide the Purchaser with an Officer’s Certificate confirming that such cure
has been effected). If the Company does not so cure such Material Defect,
it
shall, if such Material Defect would under Accepted Servicing Practices
reasonably be expected to result in a loss, repurchase the related Mortgage
Loan
at the Repurchase Price. A loss shall be deemed to be attributable to the
failure of the Company to cure a Material Defect if, as determined by the
Purchaser acting in good faith, absent such Material Defect, such loss
would not
have been incurred. In addition to such repurchase 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 missing,
mutilated or improper Mortgage Loan Document, or any claim, demand, defense
or
assertion based on or grounded upon, or resulting therefrom, as well as
for any
expenses reasonably incurred by the Purchaser in enforcing its remedies
hereunder in connection with any missing, mutilated or improper Mortgage
Loan
Document.
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 5.01 or 7.01 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
one
week 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.
The
Company shall deliver a final Mortgage Loan Schedule for the Mortgage Loans
included in any Mortgage Loan Package to be purchased on any Closing Date
to the
Purchaser no later than the date set forth in the related Purchaser Price
and
Terms Agreement.
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.
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Section
2.04. MERS
Designated Mortgage Loans.
With
respect to each MERS Designated Mortgage Loan, the Company shall, on or
prior to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder
on the
MERS System. In addition, on or prior to the related Closing Date, the
Company
shall provide the Custodian and the Purchaser with a MERS Report listing
the
Purchaser as the Investor, the Custodian as custodian and no Person as
Interim
Funder with respect to each MERS Designated Mortgage Loan.
ARTICLE
III.
PURCHASE
PRICE
The
Purchase Price shall be the percentage of par as stated in the related
Purchase
Price and Terms Letter (subject to the adjustments as provided therein),
multiplied by the aggregate principal balance, as of the related Cut-off
Date,
of the Mortgage Loans listed on the related Mortgage Loan Schedule, after
application of payments of principal received on or before the related
Cut-off
Date. Notwithstanding the foregoing, if a Mortgage Loan prepays in full
between
the related Cut-off Date and the related Closing Date, inclusive, the Company
shall either remove such Mortgage Loan from the Mortgage Loan Schedule
or
reimburse the Purchaser for the premium over par (if any) which the Purchaser
paid within three (3) days of the related Closing Date. In addition, Purchaser
will not purchase any Mortgage Loan that has not made a payment as of the
date
set forth in the related Purchase Price and Terms Letter. The initial principal
amount of the Mortgage Loans shall be the aggregate principal balance of
such
Mortgage Loans, so computed as of the related Cut-off Date. On each Closing
Date, the Purchaser shall deduct from the Purchase Price proceeds certain
costs
and expenses set forth in Article XIII or in the related Purchase Price
and
Terms Letter.
In
addition to the Purchase Price as described above, the Purchaser shall
pay to
the Company, on the related Closing Date, accrued interest on the initial
principal amount of the Mortgage Loans at the Mortgage Loan Remittance
Rate from
the related Cut-off Date through the day prior to the related Closing Date,
inclusive.
The
Purchase Price shall be paid on the related Closing Date by wire transfer
of
immediately available federal funds.
The
Purchaser shall be entitled to (i) all principal received after the related
Cut-off Date, (ii) all other recoveries of late charges, assumption fees
or
other charges collected after the related Cut-off Date, and (iii) all payments
of interest on the Mortgage Loans at the Mortgage Interest Rate. The principal
balance of each Mortgage Loan as of the related Cut-off Date is determined
after
application of payments of principal received on or before the related
Cut-off
Date. All payments of principal and interest (minus interest at the Servicing
Fee Rate) due on the first day of the month after the related Cut-off Date
shall
belong to the Purchaser.
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ARTICLE
IV.
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
Section
4.01. Company
Representations and Warranties.
The
Company represents and warrants to the Purchaser that as of each Closing
Date:
(a) Due
Organization and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Ohio and is an operating subsidiary of National
City Bank. As a national bank operating subsidiary, the Company is regulated
by
the Office of the Comptroller of the Currency and is subject to applicable
laws
and regulations. The Company has all licenses necessary to carry on its
business
as now being conducted or is licensed and qualified to transact business
and in
good standing under the laws of each state where a Mortgaged Property is
located; or is otherwise exempt under applicable law from such licensing
or
qualification; or is otherwise not required under applicable law to effect
such
licensing or qualification and in any event the Company is in compliance
with
the applicable laws of any state to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the Mortgage
Loans in
accordance with the terms of this Agreement. The Company has the full corporate
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
corporate 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, 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, conditions or provisions of the Company’s charter 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 an acceleration under any of the foregoing, 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;
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(d) Ability
to Service.
The
Company is an approved seller/servicer of conventional residential mortgage
loans for Xxxxxx Xxx and 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 and 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
and
Xxxxxxx Mac eligibility requirements or which would require notification
to
either Xxxxxx Mae and Xxxxxxx Mac;
(e) Reasonable
Servicing Fee.
The
Company acknowledges and agrees that the Servicing Fee, as calculated at
the
Servicing Fee Rate, 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 with
the
intent 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 taken in connection with the obligations of
the
Company 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 Mortgage Loans,
the
delivery of a portion of the Mortgage Files to the Custodian or the sale
of the
Mortgage Loans to the Purchaser or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been
obtained
prior to the related Closing Date;
(i) Selection
Process.
The
Mortgage Loans were not intentionally selected in a manner so as to affect
adversely the interests of the Purchaser;
(j) Pool
Characteristics.
With
respect to each Mortgage Loan Package, the Mortgage Loan characteristics
set
forth on Exhibit 2 to the related Acknowledgment and Conveyance are true
and
complete.
(k) 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;
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(l) 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;
(m) Financial
Statements.
The
Company has delivered to the Purchaser financial statements as to its last
three
complete fiscal years and any later quarter ended more than 60 days prior
to the
execution of this Agreement. All such financial statements fairly present
the
pertinent results of operations and changes in financial position at the
end of
each such period of the Company and its subsidiaries and have been prepared
in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
In
addition, the Company has delivered information as to its loan gain and
loss
experience for the immediately preceding three-year period, in each case
with
respect to mortgage loans owned by it and such mortgage loans serviced
for
others during such period, and all such information so delivered is true
and
correct in all material respects. There
has
been no change in the business, operations, financial condition, properties
or
assets of the Company since the date of the Company’s financial statements that
would have a material adverse effect on its ability to perform its obligations
under this Agreement. The Company has completed any forms requested by
the
Purchaser in a timely manner and in accordance with the provided
instructions;
(n) No
Commission to Third Parties.
The
Company has not dealt with any broker, agent or other person that may be
entitled to any commission or compensation in connection with the sale
of the
Mortgage Loans;
(o) Origination.
The
Company’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Company’s Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
(p) MERS:
The
Company is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS;
(q) Fair
Consideration.
The
consideration received by the Company upon the sale of the Mortgage Loans
under
this Agreement constitutes fair consideration and reasonably equivalent
value
for the Mortgage Loans; and
(r) Compliance
with Anti-Money Laundering Laws.
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2003,
and the
laws and regulations administered by the U.S. Department of Treasury’s Office of
Foreign Assets Control (“OFAC”),
which
prohibit dealings with certain countries, territories, entities and individuals
named in OFAC’s Sanction Programs and on the Specially Designated Nationals and
Blocked Persons List (collectively, the “Anti-Money
Laundering Laws”).
The
Company has established an anti-money laundering compliance program to
the
extent required by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in connection with the origination of each Mortgage Loan
for
purposes of the Anti-Money Laundering Laws, including with respect to the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the
said Mortgagor to purchase the property in question, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws.
-21-
(s) The
Seller in is compliance with the standards set forth in the Interagency
Guidance
on Nontraditional Mortgage Products Risks published on October 4, 2006
and
anyinteragency guidance on subprime lending.
Section
4.02. 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 related Mortgage Loan Schedule is complete,
true
and correct;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date on the Mortgage
Loan
under the terms of the Mortgage Note have been made and credited. No payment
required under the Mortgage Loan is delinquent nor has any payment under
the
Mortgage Loan been delinquent for 30 days or more in the 12 months preceding
such Closing Date;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or 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 Company has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party
other
than the Mortgagor, directly or indirectly, for 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 earlier, 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 Purchaser or its designee. 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
is
part of the Mortgage Loan File delivered to the Purchaser or its designee
and
the terms of which are reflected in the related Mortgage Loan
Schedule;
-22-
(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) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage 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 Xxxxxx Mae and Xxxxxxx
Mac.
If upon origination of the Mortgage Loan, the Mortgaged Property was in
an area
identified in the Federal Register by the Federal Emergency Management
Agency as
having special flood hazards a life-of-loan flood insurance policy meeting
the
requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of
Xxxxxx
Mae and Xxxxxxx Mac. Such flood insurance shall be with an Approved Flood
Policy
Insurer. 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 the 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. Where required by state
law or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master” or
“blanket” hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit development.
The hazard insurance policy is the valid and binding obligation of the
insurer,
is in full force and effect, and will be in full force and effect and inure
to
the benefit of the Purchaser upon the consummation of the transactions
contemplated by this Agreement. The Company has not engaged in, and has
no
knowledge of the Mortgagor’s having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement
provided
for herein, or the validity and binding effect of either, including without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized
by any
attorney, firm or other person or entity, and no such unlawful items have
been
received, retained or realized by the Company;
(g) 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,
predatory and abusive lending, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have been
complied with, the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws or regulations, and the 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;
-23-
(h) 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.
The
Company has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is a fee simple property, leasehold estate or a Cooperative
Loan located in the state identified in the related Mortgage Loan Schedule
and
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual unit
in a
planned unit development, provided, however, that any condominium unit
or
planned unit development shall conform with the applicable Underwriting
Guidelines regarding such dwellings. With respect to Mortgage Loan secured
by
leasehold estates, the leasehold estate securing any Mortgage Loan meets
all of
Xxxxxx Mae’s requirements for the purchase of mortgage loans secured by
leasehold estates. None of the Mortgaged Properties are rural properties,
manufactured homes, mobile homes, log homes, geodesic homes or other unique
properties. No portion of the Mortgaged Property is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes;
(j) Valid
First or Second Lien.
With
respect to any First Lien Mortgage Loan, the related Mortgage is a valid,
subsisting, enforceable and perfected first lien on the Mortgaged Property,
and
with respect to any Second Lien Mortgage Loan, the related Mortgage is
a valid,
subsisting, enforceable and perfected second lien on the Mortgaged Property,
including 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. Such lien is free and clear
of
all adverse claims, liens and encumbrances having priority over the first
or
second lien, as applicable, of the Mortgage subject only to:
(1) with
respect to any Second Lien Mortgage Loan, the related First Lien;
(2) the
lien
of current real property taxes and assessments not yet due and
payable;
(3) covenants,
conditions and restrictions, rights of way, easements and other matters
of the
public record as of the date of recording 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 to otherwise considered in the appraisal made for the
originator of the Mortgage Loan or (ii) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such appraisal;
and
-24-
(4) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable (A) first lien and first priority security interest
with
respect to each First Lien Mortgage Loan, or (B) second lien and second
priority
security interest with respect to each Second Lien Mortgage Loan, in either
case, 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 Security
Agreement and Assignment of Proprietary Lease 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 Security Agreement; provided, however,
that the appurtenant Proprietary Lease may be subordinated or otherwise
subject
to the lien of any mortgage on the Project;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan 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
and
any other related agreement had legal capacity to enter into the Mortgage
Loan
and to execute and deliver the Mortgage Note and the Mortgage and any other
related agreement, and the Mortgage Note and the Mortgage and any other
related
agreement have been duly and properly executed by such parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information
and
statements therein not misleading. No fraud was committed in connection
with the
origination of the Mortgage Loan. The Company has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein. With respect to each Cooperative Loan, the Mortgage Note, the Mortgage,
the Security 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
Security 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;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied
with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
-25-
(m) Ownership.
The
Company is the sole owner of record and holder of the Mortgage Loan. The
Mortgage Loan is not assigned or pledged, and the Company has good and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan therein to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest,
and
has full right and authority subject to no interest or participation of,
or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The
Company intends to relinquish all rights to possess, control and monitor
the
Mortgage Loan;
(n) Doing
Business.
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, savings banks or national banks having principal offices
in such
state, or (5) not doing business in such state;
(o) LTV;
CLTV.
No
Mortgage Loan has an LTV of greater than as set forth in the related Purchase
Price and Terms Letter. No Second Lien Mortgage Loan has a CLTV of greater
than
100%;
(p) 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 with respect to First Lien Mortgage Loans
and as
to the second priority lien of the Mortgage with respect to Second Lien
Mortgage
Loans in the original principal amount of the Mortgage Loan subject only
to the
exceptions contained in clauses (1), (2), (3) and (4) of the “Valid First or
Second Lien” representation of this Section 4.02, and with respect to each ARM
Mortgage Loan, against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment. Where required
by
state law or regulation, the Mortgagor has been given the opportunity to
choose
the carrier of the required mortgage title insurance. Additionally, such
lender’s title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any interest
therein.
The Company, its successors and assigns, are the sole insureds of such
lender’s
title insurance policy, and such lender’s title insurance policy is valid and
remains 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 including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained
or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Company;
-26-
(q) No
Defaults.
There
is no default, breach, violation or event of acceleration existing under
the
Mortgage or the Mortgage Note or related documents and no event which,
with the
passage of time or with notice and the expiration of any applicable 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. With respect to each
Second
Lien Mortgage Loan, (i) the First Lien is in full force and effect, (ii)
there
is no default, breach, violation or event of acceleration existing under
such
prior mortgage or the related mortgage note, (iii) there is no event which,
with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the prior mortgage contains a provision which
allows
or (B) applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to
cure any
default by payment in full or otherwise under the prior mortgage;
(r) 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;
(s) Location
of Improvements; No Encroachments.
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, no improvements on adjoining properties
encroach upon the Mortgaged Property and the value of the Mortgaged Property
is
not diminished by any improvements on adjoining properties which encroach
the
Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
Principal payments on the Mortgage Loan commenced no more than sixty (60)
days
after the funds were disbursed in connection with the Mortgage Loan. At
the time
the Mortgage Loan was originated, the originator was a mortgagee approved
by the
Secretary of Housing and Urban Development pursuant to Sections 203 and
211 of
the National Housing Act or a savings and loan association, a savings bank,
a
commercial bank or similar banking institution which is supervised and
examined
by a Federal or State authority. The Mortgage Interest Rate is (i) with
respect
to ARM Mortgage Loans, adjusted on each Interest Rate Adjustment Date pursuant
to the Mortgage Loan Documents and rounded as required under Accepted Servicing
Practices and subject to the Mortgage Interest Rate Cap, the Periodic Rate
Cap
and the Lifetime Rate Cap and (ii) with respect to fixed rate Mortgage
Loans,
the fixed interest rate set forth in the Mortgage Note. Except with respect
to
any balloon Mortgage Loan, or “interest
only” Mortgage Loan, each as
indicated on the related Mortgage Loan Schedule, the Mortgage Note is payable
in
equal monthly installments of principal and interest, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully
by the
stated maturity date, over an original term of not more than thirty years
from
commencement of amortization. The Mortgage Interest Rate, as well as the
Lifetime Rate Cap, the Periodic Rate Cap and the Mortgage Interest Rate
Cap, are
as set forth on the Mortgage Loan Schedule. No ARM Mortgage Loan contains
terms
whereby the Mortgagor is permitted to convert the Mortgage Loan to a fixed
rate
Mortgage Loan and no ARM Mortgage Loan contains a rounding feature. All
of the
ARM Mortgage Loans contain an interest rate provision that requires a lookback
of 45 days. No Mortgage Loan contains a negative amortization
provision;
-27-
(u) 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 or non-judicial foreclosure. Upon
default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale
of, the Mortgaged Property pursuant to the proper procedures, the holder
of the
Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. There is no homestead or other exemption available
to 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;
(v) Conformance
with Underwriting Guidelines; Underwriting Methodology.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated. The Mortgage Note
and
Mortgage are on forms acceptable to participants in the secondary mortgage
market for similar types of Mortgage Loans. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective mathematical
principles which relate the Mortgagor’s income, assets and liabilities to the
proposed payment and such underwriting methodology does not rely on the
extent
of the Mortgagor’s equity in the collateral as the principal determining factor
in approving such credit extension. Such underwriting methodology confirmed
that
at the time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan;
(w) Occupancy
of the Mortgaged Property.
As of
the related Closing Date the Mortgaged Property is lawfully occupied under
applicable law. All inspections, licenses and certificates required to
be made
or issued with respect to all occupied portions of the Mortgaged Property
and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been
made or
obtained from the appropriate authorities. The Mortgagor represented at
the time
of origination of the Mortgage Loan that the Mortgagor would occupy the
Mortgaged Property as the Mortgagor’s primary residence;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in the “Valid First or Second
Lien” representation of this Section 4.02;
-28-
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and
duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
The
Company has no knowledge of any circumstances or conditions with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File 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, or cause the Mortgage
Loans to
prepay during any period materially faster or slower than the mortgage
loans
originated by the Company generally;
(aa) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered by the Company under this Agreement have been
delivered
to the Purchaser or its designee. The Company is in possession of a complete,
true and accurate Mortgage File in compliance with Exhibit B hereto, except
for
such documents the originals of which have been delivered to the Purchaser
or
its designee;
(bb) Condominiums/Planned
Unit Developments/Manufactured Dwellings.
If the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimus planned unit development) such condominium or planned
unit
development project meets the related Underwriting Guidelines.
(cc) Manufactured
Homes.
With
respect to each Mortgage Loan secured by a manufactured home: (i) the
manufactured home is permanently affixed to a foundation which is suitable
for
the soil conditions of the site; (ii) all foundations, both perimeter and
interior, have footings that are located below the frost line; (iii) any
wheels,
axles and trailer hitches are removed from the manufactured home; (iv)
the
Mortgage Loan is covered under a standard real estate title insurance policy
or
attorney’s title opinion or certificate that identified the manufactured home as
part of the real property and insures or indemnifies against any loss if
the
manufactured home is determined not to be part of the real property. In
no event
shall any Mortgage Loan be secured by a mobile home;
(dd) Transfer
of Mortgage Loans.
If the
Mortgage Loan is not a MERS Designated Mortgage Loan, the Assignment of
Mortgage
is in recordable form and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(ee) Due
on
Sale.
The
Mortgage contains an enforceable provision for the acceleration of the
payment
of the unpaid principal balance of the Mortgage Loan in the event that
the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(ff) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Company, the Mortgagor or anyone on behalf of the Mortgagor, or
paid by
any source other than the Mortgagor nor does it contain any other similar
provisions currently in effect which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage
Loan
does not have a shared appreciation or other contingent interest
feature;
-29-
(gg) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor 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
or readjustment feature and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
the
lien priority as indicated on the Mortgage Loan Schedule 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 and Xxxxxxx
Mac.
The consolidated principal amount does not exceed the original principal
amount
of the Mortgage Loan;
(hh) Mortgaged
Property Undamaged.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for
the
Mortgage Loan or the use for which the premises were intended;
(ii) Collection
Practices; Escrow Payments.
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
respects in compliance with all applicable laws and regulations. With respect
to
escrow deposits and Escrow Payments (other
than with respect to Second Lien Mortgage Loans for which the mortgagee
under
the prior mortgage lien is collecting 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. An escrow of funds is not prohibited
by applicable law and has been established in an amount sufficient to pay
for
every item which remains unpaid and which has been assessed but is not
yet due
and payable. No escrow deposits or Escrow Payments or other charges or
payments
due the Company have been capitalized under the Mortgage or the Mortgage
Note.
With respect to each ARM Mortgage Loan, all Mortgage Interest Rate adjustments
have been made in strict compliance with federal law and the terms of the
Mortgage Note. The index used for the adjustment of the Mortgage Interest
Rate
on each ARM Mortgage Loan is the Index. The Company executed and delivered
any
and all notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the
Monthly
Payment adjustments. Any interest required to be paid to the Mortgagor
pursuant
to state, federal and local law has been properly paid and
credited;
(jj) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a Qualified
Appraiser;
-30-
(kk) 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’ Relief
Act or any other federal or state law that would have the effect of suspending
or reducing the Mortgagor's payment obligations under a Mortgage Loan or
that
would prevent or restrict the ability of the Servicer to commence or continue
with the foreclosure of the Mortgage Loan;
(ll) Environmental
Matters.
The
Mortgaged Property is free from any and all toxic or hazardous substances
and
there exists no violation of any local, state or federal environmental
law, rule
or regulation. 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 consisting a prerequisite
to
use and enjoyment of said property;
(mm) No
Construction Loans.
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgaged Property or (ii) facilitating the trade-in or exchange of
a
Mortgaged Property;
(nn) Insurance.
The
Company has caused or will cause to be performed any and all acts required
to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein,
and
establishments of coinsured, joint loss payee and mortgagee rights in favor
of
the Purchaser; No action, inaction, or event has occurred and no state
of fact
exists or has existed that has resulted or will result in the exclusion
from,
denial of, or defense to coverage under any applicable pool insurance policy,
special hazard insurance policy, PMI Policy or bankruptcy bond, irrespective
of
the cause of such failure of coverage. In connection with the placement
of any
such insurance, no commission, fee, or other compensation has been or will
be
received by the Company or any designee of the Company or any corporation
in
which the Company or any officer, director, or employee had a financial
interest
at the time of placement of such insurance;
(oo) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons;
(pp) Predatory
Lending Regulations.
No
Mortgage Loan is subject to the requirements of the Home Ownership and
Equity
Protection Act of 1994. No Mortgage Loan is classified as a “high cost,”
“threshold,” “covered,” “abusive” or “predatory” loan or a similar loan under
any applicable state, federal or local law (or similarly classified loan
using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
Each Mortgage Loan is in compliance with the anti-predatory lending eligibility
for purchase requirements of Xxxxxx Mae’s Selling Guide. Each Mortgage Loan at
the time it was made complied in all material respects with applicable
local,
state, and federal laws, including, but not limited to, all applicable
predatory
and abusive lending laws. No
Mortgage Loan is classified as “High Cost” or “Covered” as set forth in the
current Standard & Poor’s LEVELS® Glossary;
-31-
(qq) Higher
Cost Products.
No
Mortgagor was encouraged or required to select a Mortgage Loan product
offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit
history
and debt to income ratios for a lower cost credit product then offered
by the
Mortgage Loan’s originator or any Affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for
a
lower cost credit product then offered by any mortgage lending Affiliate
of the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
Mortgagor’s application to such Affiliate for underwriting
consideration;
(rr) REMIC
Status.
The
Mortgage Loan is a qualified mortgage for inclusion in a “real estate mortgage
investment conduit” for federal income tax purposes;
(ss) Simple
Interest Mortgage Loans.
None of
the Mortgage Loans are simple interest Mortgage Loans;
(tt) Single
Premium Credit Life Insurance.
No
Mortgagor was required to purchase any credit life, disability, accident
or
health insurance product or debt cancellation agreement as a condition
of
obtaining the extension of credit evidenced by the Mortgage Loan. No Mortgagor
obtained a prepaid single-premium credit life, disability, accident or
health
insurance policy in connection with the origination of the Mortgage Loan.
No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies as part of the origination of, or as a condition to
closing,
such Mortgage Loan;
(uu) Tax
Service Contract
The
Company has obtained a life of loan, transferable real estate tax service
contract with an Approved Tax Service Contract Provider on each Mortgage
Loan
and such contract is assignable without penalty, premium or cost to the
Purchaser; upon the initial set-up, each such tax service contract shall
contain
complete and accurate information with respect to the Mortgage Loan and
the
Mortgaged Property;
(vv) Flood
Certification Contract.
The
Company has obtained a life of loan, transferable flood certification contract
with an Approved Flood Policy Insurer for each Mortgage Loan and such contract
is assignable without penalty, premium or cost to the Purchaser;
(ww) Genuineness
of Signatures.
Each of
the documents in the Mortgage File is genuine and contains genuine signatures.
Each document that Purchaser requires to be an original document is an
original
document. All certified copies of original documents are true copies and
meet
the applicable requirements and specifications of this Agreement and any
other
written requirements that Purchaser has reasonably made of the
Company;
(xx) No
Prior Rejection.
No
Mortgage Loan has been previously submitted for purchase by the Company
to the
Purchaser and reviewed and rejected by the Purchaser for underwriting
reasons;
(yy) Recordation.
Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
MERS, all subsequent assignments of the original Mortgage (other than the
assignment to the Purchaser) have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as against
creditors of the Company, or is in the process of being recorded;
-32-
(zz) FICO
Scores.
The
FICO score of each Mortgage Loan is not less than what is set forth on
the
related Mortgage Loan Schedule;
(aaa) Prepayment
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 enforceable and will be enforced by the Company through
the related Closing Date, (ii) the prepayment premium is permitted pursuant
to
federal, state and local law. Except as otherwise set forth in the related
Mortgage Loan Schedule, with respect to each Mortgage Loan that contains
a
prepayment fee, such prepayment fee is at least equal to the lesser of
(A) the
maximum amount permitted under applicable law
and (B) six months interest at the related Mortgage Interest Rate on the
amount
prepaid in excess of 20% of the original principal balance of such Mortgage
Loan. With respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior
to the
origination of such Mortgage Loan, the Mortgagor agreed to such premium
in
exchange for a monetary benefit, including but not limited to a rate or
fee
reduction, (ii) prior to the origination of such Mortgage Loan, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require
payment
of such a premium, (iii) the prepayment premium is disclosed to the borrower
in
the Mortgage Loan Documents pursuant to applicable state and federal law
and
(iv) for Mortgage Loans originated on or after September 1, 2004, the duration
of the prepayment period shall not exceed three (3) years from the date
of the
Mortgage Note, unless the Mortgage Loan was modified to reduce the prepayment
period to no more than three (3) years from the date of the Mortgage Note
and
the Mortgagor was notified in writing of such reduction in prepayment period,
(v) notwithstanding any state or federal law to the contrary or clause
(i)
above, the Company shall not impose such prepayment premium in any instance
when
the mortgage debt is accelerated as the result of the borrower’s default in
making the loan payments and (vi) the
prepayment premium is set forth on the related Mortgage Loan
Schedule;
(bbb) Origination.
No
error, omission, misrepresentation, negligence, fraud or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of any person including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or, in
the
application of any insurance in relation to such Mortgage Loan; no predatory
or
deceptive lending practices, including, without limitation, the extension
of
credit without regard to the ability of the Mortgagor to repay and the
extension
of credit which has no apparent benefit to the Mortgagor, were employed
in the
origination of the Mortgage Loan. No Mortgagor was a debtor in any state
or
federal bankruptcy or insolvency proceeding at any time prior to the origination
of the Mortgage Loan, nor has any Mortgagor had a foreclosure proceeding
commenced against such Mortgagor prior to origination of the Mortgage
Loan;
(ccc) Credit
Reporting.
The
Company has caused to be 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;
-33-
(ddd) Second
Lien Mortgage Loans.
(i) Either
(A) no consent for the Second Lien Mortgage Loan is required by the holder
of
the related First Lien or (B) such consent has been obtained and is contained
in
the Mortgage File;
(ii) With
respect to any Second Lien Mortgage Loan, the Company has not received
notice
of: (A) any proceeding for the total or partial condemnation of any Mortgaged
Property, (B) any subsequent, intervening mortgage, lien, attachment, lis
pendens or other encumbrance affecting any Mortgaged Property or (C) any
default
under any mortgage, lien or other encumbrance senior to each
Mortgage;
(iii) With
respect to any Second Lien Mortgage Loan, where required or customary in
the
jurisdiction in which the Mortgaged Property is located, the original lender
has
filed of record a request for notice of any action by the senior lienholder
under the related First Lien, and the original lender has notified any
senior
lienholder in writing of the existence of the Second Lien Mortgage Loan
and
requested notification of any action to be taken against the Mortgagor
by the
senior lienholder;
(iv) No
Second
Lien Mortgage Loan is a “home equity line of credit” or Texas Home Equity Loan;
and
(v) As
of the
related Closing Date, the Company has not received a notice of default
of a
First Lien which has not been cured;
(eee) Escrow
Analysis.
If
applicable, with respect to each Mortgage, the Company has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of
such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(fff) Mortgagor
Disclosure.
All
points, fees and charges (including finance charges), whether or not financed,
assessed, collected or to be collected in connection with the origination
and
servicing of each Mortgage Loan have been disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
in the case of a Mortgage Loan in an original principal amount of less
than
$60,000 which would have resulted in an unprofitable origination, no Mortgagor
was charged “points and fees” (whether or not financed) in an amount greater
than 5% of the principal amount of such Mortgage Loan, such 5% limitation
is
calculated in accordance with Xxxxxx Mae’s anti-predatory lending requirements
as set forth in the Xxxxxx Xxx Selling Guide. The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by applicable law with respect to the
making
of adjustable rate mortgage loans. The Company shall maintain such statement
in
the Mortgage File;
(ggg) Leaseholds.
If the
Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground
lease
does not provide for termination of the lease in the event of lessee’s default
without the mortgagee being entitled to receive written notice of, and
a
reasonable opportunity to cure the default; (4) the ground lease permits
the
mortgaging of the related Mortgaged Property; (5) the ground lease protects
the
mortgagee’s interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid;
and (7) the use of leasehold estates for residential properties is a widely
accepted practice in the jurisdiction in which the Mortgaged Property is
located;
-34-
(hhh) Arbitration.
No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan
is
subject to mandatory arbitration;
(iii) Balloon
Mortgage Loans.
No
Mortgage Loan is a Balloon Mortgage Loan that has an original stated maturity
of
less than seven (7) years;
(jjj) LTV,
PMI Policy.
With
respect to each Mortgage Loan for which the related Mortgage Loan Schedule
indicates there is a PMI Policy, the LTV of the Mortgage Loan either is
not more
than 80% or the excess over 75% of the Appraised Value is and will be insured
as
to payment defaults by a PMI Policy until the LTV of such Mortgage Loan
is
reduced to 80%.
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. No
action, inaction, or event has occurred and no state of facts exists that
has,
or will result in the exclusion from, denial of, or defense to coverage.
Any
Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder
to
maintain the PMI Policy and to pay all premiums and charges in connection
therewith;
(kkk) 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 Shares 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; (ii) (a) The term of the related
Proprietary Lease is not less than the term of the Cooperative Loan; (b)
there
is no prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (c) 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; and (d)
the
Cooperative has good and marketable title to the Project, and owns the
Project
in fee simple or under a leasehold; such title is free and clear of any
adverse
liens or encumbrances, except the lien of any blanket mortgage; and (iii)
The
Company has the right under the terms of the Mortgage Note, Security Agreement
and Recognition Agreement to pay any maintenance charges or assessments
owed by
the Mortgagor;
(lll) Texas
Home Equity Loans.
With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any and
all
requirements of Section 50, Article XVI of the Texas Constitution applicable
to
Texas Home Equity Loans which were in effect at the time of the origination
of
the Mortgage Loan have been complied with. Specifically, without limiting
the
generality of the foregoing, any fees paid in connection with such Mortgage
Loan
in order for the Mortgagor to receive a reduced interest rate are not required
to be included in the calculation of the aggregate fees pursuant to Section
50(a)(6)(E) of the Texas Constitution;
-35-
(mmm) Imaged
Documents.
Any
document to be included in the Mortgage File that is delivered as an imaged
document (and not accompanied by the original underlying document) represents
a
true, complete, and correct copy of the original document in all respects,
including, but not limited to, all signatures conforming with signatures
contained in the original document, no information having been added or
deleted,
and no imaged document having been manipulated or altered in any manner.
Each
imaged document is clear and legible in all material respects, including,
but
not limited to, accurate reproductions of photographs. No original documents
have been or will be altered in any material manner.
The
destruction by the Company of any original document underlying an imaged
document or the inability of Company to produce a copy of such original
document
upon request shall not cause (i) any material delay in the enforcement
of the
Mortgage Loan, (ii) any inability to collect all amounts due under the
Mortgage
Loan, including without limitation, in connection with a foreclosure or
other
sale of the Mortgaged Property, (iii) private institutional investors to
regard
the Mortgage Loan as an unacceptable investment or adversely affect the
value or
marketability of the Mortgage Loan, or (iv) any claims from holders of
mortgage-backed securities collateralized by the Mortgage Loan;
(nnn) FEMA
Designations.
No
Mortgaged Property (i) is in a zip code declared by the Federal Emergency
Management Agency (“FEMA”) as a federal disaster area and (ii) has been declared
by FEMA as being an “Individual Assistance” property or “Category 1” property
(or such similar term(s) or classification(s) that may be used by FEMA
from time
to time);
(ooo) Xxxx
County Pilot Program.
No
Mortgage Loan is subject to H.B. 4050, the Predatory Lending Database Act
enacted by the State of Illinois as of September 1, 2006, unless the related
Mortgage File includes (i) a clean title insurance policy without material
exceptions and (ii) a copy of the Certificate of Compliance or the Certificate
of Exemption issued by the Department of Financial and Professional
Regulation;
(ppp) The
origination of each Mortgage Loan was undertaken in accordance with Interagency
Guidance on Nontraditional Mortgage Products Risks published on October
4, 2006
and anyinteragency guidance with respect to subprime lending; and
(qqq) For
all
Mortgage Loans which provide for deferred payments of principal or interest,
and
for Mortgage Loans which provide for a variable rate of interest in which
the
first interest rate adjustment occurs less than five (5) years after the
origination date, the debt-to-income ratio used to qualify the Mortgage
Loans
under the Underwriting Guidelines was calculated using the fully-indexed
rate,
assuming a fully-amortizing payment schedule, and was based upon the initial
loan amount plus any balance increase which might accrue from a negative
amortization provision.
-36-
Section
4.03. Remedies
for Breach of Representations and Warranties.
(a) It
is
understood and agreed that the representations and warranties set forth
in
Sections 4.01 and 4.02 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 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 (in
the case
of any of the foregoing, a “Breach”), the party discovering such Breach shall
give prompt written notice to the other. With respect to those representations
and warranties which are made to the best of the Company’s knowledge, if it is
discovered by the Company or the Purchaser that the substance of such
representation and warranty is inaccurate and such inaccuracy materially
and
adversely affects the value of the related Mortgage Loan or the interest
of the
Purchaser (or which materially and adversely affects the value of a Mortgage
Loan or the interests of the Purchaser in the related Mortgage Loan in
the case
of a representation and warranty relating to a particular Mortgage Loan),
notwithstanding the Company’s lack of knowledge with respect to the substance of
such representation and warranty, such inaccuracy shall be deemed a breach
of
the applicable representation and warranty.
Upon
discovery by either party of a Breach of any representation or warranty,
the
party discovering such Breach shall give prompt notice to the other party.
Within 60 days of the earlier of either discovery by or notice to the Company
of
any Breach of a representation or warranty, 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. Notwithstanding
the above sentence, within 60 days of the earlier of either discovery by,
or
notice to, the Company of any breach of the “Single Premium Credit Life
Insurance”, “Predatory Lending Regulations”, “Texas Home Equity Loans”,
“Prepayment Premium” or “Credit Reporting” representations or warranties set
forth in Section 4.02, the Company shall repurchase such Mortgage Loan
at the
Repurchase Price. In
the
event that a Breach shall involve any representation or warranty set forth
in
Section 4.01, and such Breach cannot be cured within 60 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.
Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of
this Section 4.03 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, 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 within 5 Business Days of Purchaser’s receipt of repurchase funds. In the
event of a repurchase, the Company shall, simultaneously with such reassignment,
give written notice to the Purchaser that such repurchase has taken place,
and
the related Mortgage Loan Schedule shall be deemed amended to reflect the
withdrawal of the Deleted Mortgage Loan from this Agreement.
-37-
In
addition to such repurchase 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 any
representation or warranty made by the Company in this Agreement. It is
understood and agreed that the obligations of the Company set forth in
this
Section 4.03 to cure or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 4.03 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 4.01 and 4.02 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.
(b) Except
as
set forth in the related Purchase Price and Terms letter, with respect
to any
Mortgage Loan, if the related Mortgagor is 30 or more days delinquent with
respect to the Mortgage Loan’s first Monthly Payment due to the Purchaser, the
Company shall, upon receipt of notice from the Purchaser, promptly repurchase
such Mortgage Loan from the Purchaser in accordance with this Section;
provided,
that no right to cure set forth herein shall apply.
Section
4.04. Restrictions
and Requirements Applicable in the Event that a Mortgage Loan is Acquired
by a
REMIC.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, the following provisions shall be applicable
to
such Mortgage Loan:
(a) Repurchase
of Mortgage Loans.
With
respect to any Mortgage Loan that is not in default or as to which no default
is
imminent, no repurchase pursuant to Section 4.03 or 8.03 shall be made,
unless,
if so required by the applicable REMIC Documents the Company has obtained
an
Opinion of Counsel to the effect that such repurchase will not (i) result
in the imposition of taxes on “prohibited transactions” of such REMIC (as
defined in Section 860F of the Code) or otherwise subject the REMIC to
tax, or
(ii) cause the REMIC to fail to qualify as a REMIC at any
time.
(b) Tax
Returns.
(i) With
respect to the Mortgage Loans serviced by the Company under this Agreement,
the
Company covenants and agrees that it shall cooperate and provide any and
all
information to enable the trustee or other responsible party to perform
all of
the following duties: (1) prepare, file and sign all Tax Returns using
a
calendar year as the taxable year for the REMIC and the accrual method
of
accounting when and as required by the REMIC Provisions and other applicable
federal income tax laws; (2) make an election, on behalf of the REMIC to
be
treated as a REMIC on the Tax Returns of the REMIC for its first taxable
year,
in accordance with the REMIC Provisions; (3) prepare and file or cause
to be
prepared and filed, and deliver, any and all Tax Returns, information statements
or other filings required to be delivered to any governmental taxing authority,
or to any owner thereunder, pursuant to any applicable federal, state or
local
tax law with respect to the REMIC or the certificates issued thereunder
and the
transactions contemplated thereby; (4) cause to be provided to the owner
thereunder such data necessary for their original issue discount computations
and market discount computations with respect to the certificates issued
thereunder for federal income tax purposes as the owner thereunder may
reasonably request from time to time; (5) conduct the affairs of the REMIC
so as
to maintain the status thereof as a REMIC under the REMIC Provisions; (6)
not
knowingly or intentionally take any action or omit to take any action that
would
cause the termination of the REMIC status of the REMIC; (7) make any election
required by the REMIC Provisions to treat as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code all property that the REMIC has
acquired or will acquire that may qualify as such foreclosure property;
(8)
cause to be provided notice to the holders of any certificates issued thereunder
of the existence of the restrictions on transfers and exchange provided
under
the REMIC documents; (9) cause to be provided information necessary for
the
computation of tax imposed on the transfer of a residual certificate issued
thereunder to a Disqualified Organization, or an agent of a Disqualified
Organization, provided that the reasonable cost of computing and furnishing
such
information may be charged to the person liable for such tax; and (9) in
a
timely manner cause to be paid the amount of any and all federal, state
and
local taxes imposed on the REMIC or its respective assets or transactions
including, without limitation, (i) “prohibited transaction” penalty taxes as
defined in Section 860F of the Code, if, when and as the same shall be
due and
payable, (ii) any tax on contributions to a REMIC after the closing date of
such REMIC imposed under Section 860G(d) of the Code and (iii) any tax on
“net income from foreclosure property” as defined in Section 860G(c) of the
Code.
-38-
(ii) Within
30
days after the closing date of any REMIC, if so required by the applicable
REMIC
Documents, the Company shall cooperate and provide any and all information
necessary or helpful to enable the trustee or other responsible party to
prepare
and file with the Internal Revenue Service Form 8811, “Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations” for the REMIC. The trustee or other responsible party shall
sign such returns and is hereby indemnified and held harmless by the Company
with respect to any tax or liability arising from the trustee’s or other
responsible party’s signing such information returns to the extent that such tax
or liability results from information provided by or on behalf of the Company
or
information that should have been provided by or on behalf of the
Company.
(c) General
Servicing Obligations.
The
Company shall sell any REO Property within three years after its acquisition
by
the REMIC unless (i) the Company applies for an extension of such
three-year period from the Internal Revenue Service pursuant to the REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property
shall be
sold within the applicable extension period, or (ii) the Company obtains
for the Purchaser an Opinion of Counsel, addressed to the Purchaser and
the
Company, to the effect that the holding by the REMIC of such REO Property
subsequent to such three year period will not result in the imposition
of taxes
on “prohibited transactions” as defined in Section 860F of the Code or cause the
REMIC to fail to qualify as a REMIC under the REMIC Provisions or comparable
provisions of relevant state laws at any time. The Company shall manage,
conserve, protect and operate each REO Property for the Purchaser solely
for the
purpose of its prompt disposition and sale in a manner which does not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) or result in the receipt by the REMIC of any “income from
non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code or
any “net income from foreclosure property” which is subject to taxation under
Section 860G(a)(1) of the Code. Pursuant to its efforts to sell such REO
Property, the Company shall either itself or through an agent selected
by the
Company protect and conserve such REO Property in the same manner and to
such
extent as is customary in the locality where such REO Property is located
and
may, incident to its conservation and protection of the interests of the
Purchaser, rent the same, or any part thereof, as the Company deems to
be in the
best interest of the Company and the Purchaser for the period prior to
the sale
of such REO Property; provided, however, that any rent received or accrued
with
respect to such REO Property qualifies as “rents from real property” as defined
in Section 856(d) of the Code.
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(d) Additional
Covenants.
In
addition to the provision set forth in this Section 4.04, if a REMIC election
is
made with respect to the arrangement under which any of the Mortgage Loans
or
REO Properties are held, then, with respect to such Mortgage Loans and/or
REO
Properties, and notwithstanding the terms of this Agreement, 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 in
Section 860F(a)(2) of the Code and the tax on “contributions” to a REMIC set
forth in Section 860G(d) of the Code) unless the 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.
If
a
REMIC election is made with respect to the arrangement under which any
Mortgage
Loans or REO Properties are held, the Company shall amend this Agreement
such
that it will meet all Rating Agency requirements.
Section
4.05. Due
Diligence.
Up
to the
related Closing Date, the Purchaser shall have the right to review the
Mortgage
Files and obtain BPOs on the Mortgaged Properties relating to the Mortgage
Loans
purchased on such Closing Date, with the results of such Mortgage File
and BPO
reviews to be communicated to the Company. In addition, the Purchaser shall
have
the right to reject any Mortgage Loan which in the Purchaser’s sole
determination (i) fails to conform to the Underwriting Guidelines, (ii)
is not
an acceptable credit risk, (iii) was underwritten without verification
of the
borrower’s income and assets and there is no credit report or credit score in
the Mortgage File or (iv) the value of the Mortgaged Property pursuant
to any
BPO obtained by the Purchaser is less than 85% or the lesser of (A) the
original
appraised value of the Mortgaged Property or (B) the purchase price of
the
Mortgaged Property as of the date of origination. In the event that the
Purchaser so rejects any Mortgage Loan, the Company shall repurchase the
rejected Mortgage Loan at the Repurchase Price in the manner prescribed
in
Section 4.03 upon receipt of notice from the Purchaser of the rejection
of such
Mortgage Loan. Any rejected Mortgage Loan shall be removed from the terms
of
this Agreement. The Company shall make available all files required by
Purchaser
in order to complete its review. Any review performed by the Purchaser
prior to
the Closing Date does not limit the Purchaser’s rights or the Company’s
obligations under this Agreement thereafter. Notwithstanding that a Mortgage
Loan is underwritten pursuant to the related Underwriting Guidelines, if
a
Mortgage Loan is underwritten without verification of the borrower’s income and
assets and there is no credit report and credit score, the Purchaser has
the
right to reject such Mortgage Loan. The Company shall make available all
credit
files in order for the Purchaser to complete a full data verification review,
which includes but is not limited to capturing all CRA/HMDA required data
fields.
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ARTICLE
V.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
5.01. Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the
Mortgage
Loans in the related Mortgage Loan Package from and after each Closing
Date and
shall have full power and authority, acting alone, 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.
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 Purchasers,
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 of any material
term of
any Mortgage Loan including any modifications that would change the Mortgage
Interest Rate, defer or forgive the payment of principal or interest, reduce
or
increase the outstanding principal balance (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 6.03, 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 6.03. 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.
-41-
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.
With
respect to any Second Lien Mortgage Loan, if the Company is notified that
any
First Lien lienholder has accelerated or intends to accelerate the obligations
secured by the First Lien, or has declared or intends to declare a default
under
the Mortgage or the Mortgage Note secured thereby, or has filed or intends
to
file an election to have the Mortgaged Property sold or foreclosed, the
Company
shall immediately notify the Purchaser of any such notice from or action
by the
First Lien lienholder and of the amount necessary to cure the default or
reinstate the First Lien. The Company shall further make recommendations
to the
Purchaser (including note sales to third parties) so as to best protect
the
Purchaser’s interest in and the security of the related Mortgage Loan. If the
Purchaser directs the Company to cure a default under or otherwise reinstate
a
First Lien, the Purchaser will advance to the Company necessary funds to
cure
the default or reinstate the First Lien. The Company shall thereafter take
immediate action to recover from the Mortgagor the amount so advanced.
The
Purchaser shall notify the Company in writing of any and all action which
it
requests the Company to take.
In
the
event that the Company reasonably deems that the factual circumstances
require
prompt action, the Company may (but shall not be obligated to) without
notice to
the Purchaser, advance the necessary funds to cure the default or reinstate
the
First Lien so as to best protect the Purchaser’s interest. The Company shall
thereafter notify the Purchaser of the action taken, including the amount
of the
advance. The Purchaser shall reimburse the Company for all advances made
pursuant to this paragraph. The Company shall thereafter take immediate
action
to recover from the Mortgagor the amount so advanced.
The
Company shall cause to be maintained for each Cooperative Loan a copy of
the
financing statements and shall file 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.
Section
5.02. Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 5.01 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 (a) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own
account
for investment, (b) shall be consistent with Accepted Servicing Practices,
(c)
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 5.01 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, provided that, prior to commencing
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 10 Business
Days of
receiving such notice. 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 5.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
-42-
Section
5.03. Collection
of Mortgage Loan Payments.
Continuously
from the related Closing Date until the date each Mortgage Loan ceases
to be
subject to this Agreement, 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 Loans and each related 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
5.04. 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 “National City Mortgage Co., in trust
for Xxxxxx Brothers Bank, purchaser of Conventional Residential Adjustable
and
Fixed Rate Mortgage Loans, Group No. 2007-FLOW”. The Custodial Account shall be
established with a Qualified Depository acceptable to the Purchaser. Any
funds
deposited in the Custodial Account shall at all times be fully insured
to the
full extent permitted under applicable law. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section 5.05.
The
creation of any Custodial Account shall be evidenced by a certification
in the
form of Exhibit C-1 hereto, in the case of an account established with
the
Company, or by a letter agreement in the form of Exhibit C-2 hereto, in
the case
of an account held by a depository other than the Company. A copy of such
certification or letter agreement shall be furnished to the Purchaser and,
upon
request, to any subsequent purchaser of the Mortgage Loans.
-43-
The
Company shall deposit in the Custodial Account on a daily basis within
one
Business Day of receipt, and retain therein, the following collections
received
by the Company and payments made by the Company after the Cut-off
Date:
(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) any
Prepayment Charge received in connection with the Mortgage Loans, except
to the
extent set forth in the Purchase Price and Terms Letter;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 5.10 (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 5.14), Section 5.11 and Section
5.15;
(vi) 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
5.14;
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan
pursuant
to Section 4.03;
(viii) any
amounts required to be deposited by the Company pursuant to Section 5.11
in
connection with the deductible clause in any blanket hazard insurance
policy;
(ix) any
amounts required to be deposited by the Company pursuant to Section 5.15
in
connection with any unpaid claims that are a result of a breach by the
Company
or any subservicer of the obligations hereunder or under the terms of a
PMI
Policy;
(x) any
amounts received by the Company under a PMI or LPMI Policy;
(xi) with
respect to each Principal Prepayment in full or in part, the Prepayment
Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Company’s own funds, without reimbursement therefor up to a
maximum amount per month of the Servicing Fee actually received for such
month
for the Mortgage Loans;
-44-
(xii) any
amounts received with respect to or related to any REO Property and all
REO
Disposition Proceeds pursuant to Section 5.16; and
(xiii) any
other
amount required to be deposited into the Custodial Account pursuant to
the terms
hereof.
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 Ancillary Income 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
5.05.
Section
5.05. 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 6.01;
(ii) to
reimburse itself for Monthly Advances of the Company’s funds made pursuant to
Section 6.03, 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 4.03 or 8.03, 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
Purchasers 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 where the Company is required to repurchase a Mortgage
Loan
pursuant to Section 4.03 or 8.03, in which case the Company’s right to such
reimbursement shall be subsequent to the payment to the Purchasers of the
Repurchase Price pursuant to such sections and all other amounts required
to be
paid to the Purchasers with respect to such Mortgage Loan;
(iv) to
pay
itself interest on funds deposited in the Custodial Account;
-45-
(v) to
reimburse itself for expenses incurred and reimbursable to it pursuant
to
Section 9.01;
(vi) with
respect to each LPMI Loan, an amount equal to the related LPMI Fee to make
payment of premiums due under the LPMI Policy;
(vii) to
pay
any amount required to be paid pursuant to Section 5.16 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;
(viii) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(ix) to
withdraw funds deposited in error.
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 6.01, 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 5.05.
Section
5.06. 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, “National City
Mortgage Co., in trust for Xxxxxx Brothers Bank, purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No. 2007-FLOW,
and
various Mortgagors”. The Escrow Accounts shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the
Company
in accordance with Section 5.07. The creation of any Escrow Account shall
be
evidenced by a certification in the form of Exhibit D-1 hereto, in the
case of
an account established with the Company, or by a letter agreement in the
form of
Exhibit D-2 hereto, in the case of an account held by a depository other
than
the Company. A copy of such certification shall be furnished to the Purchaser
and, upon request, to any subsequent purchaser.
The
Company shall deposit in the Escrow Account or Accounts on a daily basis
within
one Business Day of 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; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which
are to be
applied to the restoration or repair of any Mortgaged Property.
-46-
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
5.07. 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
5.07. 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 5.08 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 5.14;
(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
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
Section
5.08. Payment
of Taxes, Insurance and Other Charges.
(a) With
respect to each Mortgage Loan which provides for Escrow Payments, 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)
(“Property
Charges”)
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.
-47-
(b) To
the
extent that a Mortgage Loan does not provide for Escrow Payments, the Company
shall make advances from its own funds to effect payment of all Property
Charges
upon receipt of notice of any failure to pay on the part of the Mortgagor,
or at
such other time as the Company determines to be in the best interest of
the
Purchaser, provided, that in any event the Company shall pay such charges
on or
before the earlier of (a) any date by which payment is necessary to preserve
the
lien status of the Mortgage or (b) the date which is ninety days after
the date
on which such charges first became due. The Company shall pay any late
fee or
penalty which is payable due to any delay in payment of any Property Charge
after the earlier to occur of (a) the date on which the Company receives
notice
of the failure of the Mortgagor to pay such Property Charge or (b) the
date
which is ninety days after the date on which such charges first became
due.
Section
5.09. Protection
of Accounts.
The
Company may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be withheld
unreasonably.
The
Company shall bear any expenses, losses or damages sustained by the Purchaser
because the Custodial Account and/or the Escrow Account are not demand
deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Company be invested in Eligible Investments; provided that in the event
that
amounts on deposit in the Custodial Account or the Escrow Account exceed
the
amount fully insured by the FDIC (the “Insured
Amount”)
the
Company shall be obligated to invest the excess amount over the Insured
Amount
in Eligible Investments on the same Business Day as such excess amount
becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the third (3rd)
calendar day prior to the Remittance Date next following the date of such
Eligible Investment, provided, however, that if such Eligible Investment
is an
obligation of a Qualified Depository (other than the Company) that maintains
the
Custodial Account or the Escrow Account, then such Eligible Investment
may
mature on such Remittance Date. Any such Eligible Investment shall be made
in
the name of the Company in trust for the benefit of the Purchaser. All
income on
or gain realized from any such Eligible Investment shall be for the benefit
of
the Company and may be withdrawn at any time by the Company. Any losses
incurred
in respect of any such investment shall be deposited in the Custodial Account
or
the Escrow Account, by the Company out of its own funds immediately as
realized.
-48-
Section
5.10. 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 a generally
acceptable insurer rated A:VI or better in the current Best’s Key Rating Guide
(“Best’s”) 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) the replacement
value of
the improvements securing such Mortgage Loan and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the
loss
payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register 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 rated A:VI or better in Best’s 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
and
pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located
in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection
Act of
1973, as amended, the 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 Xxx 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.
The
Company shall cause to be maintained on each Mortgaged Property earthquake
or
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as
shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
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 desirability of protection of the Mortgaged
Property.
-49-
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 rated A:VI or better in Best’s 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. The Company shall furnish to the Mortgagor a formal notice of
expiration of any such insurance in sufficient time for the Mortgagor to
arrange
for renewal coverage by the expiration date.
Pursuant
to Section 5.04, 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 5.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 5.05.
Notwithstanding
anything set forth in the preceding paragraph, the Company agrees to indemnify
the Purchaser for any claims, losses, damages, penalties, fines, forfeitures,
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
Mortgage
(or the Company) to maintain hazard insurance or flood insurance with respect
to
the related Mortgaged Property which complies with the requirements of
this
section.
Section
5.11. 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 5.10 and otherwise
complies with all other requirements of Section 5.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 5.10.
Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account or Escrow Account subject
to
withdrawal pursuant to Section 5.06. 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 5.10, 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 deposited from the Company’s funds, without reimbursement
therefor. Upon request of any Purchaser, the Company shall cause to be
delivered
to such Purchaser a certified true copy of such policy and a statement
from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days’ prior written notice to such
Purchaser.
-50-
Section
5.12. 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, embezzle-ment, 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
5.12
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 at least equal to the corresponding amounts required by Xxxxxx
Mae in
the Xxxxxx Xxx Guides or by Xxxxxxx Mac in the Xxxxxxx Mac Guides. Upon
the
request of the 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. Upon request of the Purchaser, the
Company shall cause to be delivered to the Purchaser a certified true copy
of
such policy and a statement from the insurer thereunder that such policy
shall
in no event be terminated or materially modified without 30 days’ prior written
notice to the Purchaser.
Section
5.13. Inspections.
The
Company shall inspect the Mortgaged Property as often as deemed necessary
by the
Company to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 45 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
written report of each such inspection.
Section
5.14. 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. At a minimum, the Company
shall
comply with the following conditions in connection with any such release
of
Insurance Proceeds or Condemnation Proceeds:
-51-
(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
5.15. Maintenance
of PMI and/or LPMI Policy; Claims.
(a) The
Company shall comply with all provisions of applicable state and federal
law
relating to the cancellation of, or collection of premiums with respect
to, PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as
amended
from time to time. The Company shall be obligated to make premium payments
with
respect to (i) LPMI Policies, to the extent of the LPMI Fee set forth on
the
Mortgage Loan Schedule with respect to any LPMI Loans, which shall be paid
out
of the interest portion of the related Monthly Payment or, if a Monthly
Payment
is not made, from the Company’s own funds and (ii) PMI Policies required to be
maintained by the Mortgagor rather than the Purchaser, if the Mortgagor
is
required but fails to pay any PMI Policy premium, which shall be paid from
the
Company’s own funds. Any premium payments made by the Company from its own funds
pursuant to this Section 5.15(a) shall be recoverable by the Company as
a
Servicing Advance, subject to the reimbursement provisions of Section 5.05(iii).
With
respect to each Mortgage Loan (other than LPMI Loans) with a loan-to-value
ratio
at origination in excess of 80%, the Company shall, without any cost to
the
Purchaser, maintain or cause the Mortgagor to maintain (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance) in full
force
and effect a PMI Policy, and shall pay or shall cause the Mortgagor to
pay the
premium thereon on a timely basis, until the LTV of such Mortgage Loan
is
reduced to 80%. In the event that such PMI Policy shall be terminated,
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, at substantially the same fee level. 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 agreements
entered
into or to be entered into with respect to a Mortgage Loan, 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.
-52-
(b) With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the
Company shall take all such actions on behalf of the Purchaser as are necessary
to service, maintain and administer the related Mortgage Loan in accordance
with
such Policy and to enforce the rights under such Policy. Except as expressly
set
forth herein, the Company shall have full authority on behalf of the Purchaser
to do anything it deems appropriate or desirable in connection with the
servicing, maintenance and administration of such Policy; provided
that
the
Company shall not take any action to permit any modification or assumption
of a
Mortgage Loan covered by a LPMI or PMI Policy, or take any other action
with
respect to such Mortgage Loan, which would result in non-coverage under
such
Policy of any loss which, but for actions of the Company, would have been
covered thereunder. If the Qualified Insurer fails to pay a claim under
a LPMI
or PMI Policy solely as a result of a breach by the Company of its obligations
hereunder or under such Policy, the Company shall be required to deposit
in the
Custodial Account on or prior to the next succeeding Remittance Date an
amount
equal to such unpaid claim from its own funds without any rights to
reimbursement from the Purchaser; provided, that once the Company has paid
the
amount of such unpaid claim and the Purchaser has otherwise fully recovered
all
amounts due to the Purchaser with respect to the Mortgage Loan, the Purchaser
shall (at the Company’s cost and expense) cooperate with the Company in
permitting the Company to be subrogated to the rights of the Purchaser
with
respect to such Mortgage Loan to the same extent that the insurer would
have
been subrogated under the applicable PMI Policy had such insurer not failed
to
pay such claim. The Company shall cooperate with the Qualified Insurers
and
shall furnish all reasonable evidence and information in the possession
of the
Company to which the Company has access with respect to the related Mortgage
Loan; provided,
however,
notwithstanding anything to the contrary contained in any LPMI Policy or
PMI
Policy, the Company shall not be required to submit any reports to the
related
Qualified Insurer until a reporting date that is at least 15 days after
the
Company has received sufficient loan level information from each Purchaser
to
appropriately code its servicing systems in accordance with the Qualified
Insurer’s requirements.
(c) In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the Qualified
Insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with
the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such
action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Company
under
any PMI Policy or LPMI Policy shall be deposited in the Custodial Account
pursuant to Section 5.04(x), subject to withdrawal pursuant to Section
5.05(vi).
Section
5.16. 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’s designee, or in the event the Purchaser’s designee is
not authorized or permitted to hold title to real property in the state
where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the 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’s designee.
-53-
The
Company shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate 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 not later than the
end of
the third taxable year after the year of its acquisition unless (i) (A)
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.
Notwithstanding
anything to the contrary contained in this Section 5.16, 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 to be conducted by a qualified inspector shall be arranged by
the
Company. Upon completion of the inspection, the Company shall provide the
Purchaser with a written report of such environmental inspection. In the
event
that the environmental inspection report indicates that the Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, the Company
shall
not proceed with foreclosure or acceptance of a deed in lieu of foreclosure.
In
the event that the environmental inspection report is inconclusive as to
the
whether or not the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, the Company shall not, without the prior approval
of the
Purchaser, proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In the event the Purchaser or its designee 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
5.04
hereof.
-54-
Subject
to the approval of the Purchaser or its designee as described in this paragraph,
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. Prior to acceptance by the Company of
an offer
to sell any REO Property, the Company shall notify the Purchaser or its
designee
of such offer in writing which notification shall set forth all material
terms
of said offer (each a “Notice of Sale”). The Purchaser or its designee shall be
deemed to have approved the sale of any REO Property unless the Purchaser
or its
designee notifies the Company in writing, within 2 Business Days after
its
receipt of the related Notice of Sale, that it disapproves of the related
sale,
in which case the Company shall not proceed with such sale.
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 6.03, and 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. At the time of such reimbursement, the Company
shall be entitled to an REO Disposition Fee.
The
Company shall make advances of all funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 5.10, such advances
to be
reimbursed from the disposition or liquidation proceeds of the REO Property.
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 this Section
5.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section
5.17. Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 6.02, the Company shall
furnish
to the Purchaser 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.
-55-
Section
5.18. 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.
In
addition, the Company shall provide the Purchaser or its designee a report
of
Servicing Advances and other expenses in connection with the liquidation
of any
Mortgage Loan.
Section
5.19. Notification
of Adjustments.
With
respect to each ARM 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. The Company shall promptly,
upon written request therefor, deliver to the Purchaser such notifications
and
any additional applicable data regarding such adjustments and the methods
used
to calculate and implement such 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
5.20. 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.
Section
5.21. Waiver
of Prepayment Charges.
Except
as
set forth below, the Company or any designee of the Company shall not waive
any
prepayment charge with respect to any Mortgage Loan. If the Company or
its
designee fails to collect a prepayment charge at the time of the related
prepayment of any Mortgage Loan subject to such prepayment charge, the
Company
shall pay to the Custodial Account an amount equal to the amount of the
prepayment charge not collected. Notwithstanding the above, the Company
or its
designee may waive a prepayment charge without paying to the Custodial
Account
the amount of such prepayment charge only if the related prepayment is
not the
result of a refinancing by the Company or its designee and such waiver
(a)
relates to a defaulted Mortgage Loan or a reasonably foreseeable default,
such
waiver is standard and customary in servicing similar mortgage loans to
the
Mortgage Loans, and such waiver, in the reasonable judgment of the Company,
would maximize recovery of total proceeds from the Mortgage Loan, taking
into
account the amount of such prepayment charge and the related Mortgage Loan,
or
(b) relates to a prepayment charge the collection of which, in the reasonable
judgment of the Company, would be a violation of applicable laws.
-56-
Section
5.22. Credit
Reporting.
For
each
Mortgage Loan, the Company shall accurately and 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 each of the following credit repositories: Equifax, Credit Information
Services, Inc., Experian Information Solutions, Inc., and Trans Union,
LLC on a
monthly basis.
Section
5.23. Safeguarding
Customer Information
The
Company shall implement and maintain security measures designed to meet
the
objectives of the Interagency Guidelines Establishing Information Security
Standards (the “Guidelines”),
Section 216 of the Fair and Accurate Credit Transactions Act (including
its
implementing regulations, “FACTA”),
as
well as any amendments thereto or other applicable regulations regarding
safeguarding information enacted or released by a regulatory agency having
jurisdiction over the Purchaser or the Company. In addition, the Company
represents to the Purchaser that it has in place a response program to
respond
to any incident of unauthorized access to Customer Information (as defined
in
the Guidelines). At all times during the term of this Agreement, the Company
shall maintain administrative, technical and physical safeguards, including
proper information disposal procedures, to ensure the security, confidentiality
and integrity of Customer Information, and to protect such information
against
any threats or hazards, including, without limitation, unauthorized access
or
use. The Company will periodically (but not less than annually) review
and
update its information security procedures.
The
Company shall, at the Company’s sole expense, take appropriate actions,
including such actions as the Purchaser may request, to address any actual
or
apparent incident of theft or unauthorized access, use or disclosure of
any
Customer Information maintained by the Company, including providing prompt
notification to the Purchaser of any such incident and will, at the Purchaser’s
request, at the Company’s sole expense, notify the Purchaser’s customers on the
Purchaser’s behalf of any such unauthorized access, use or disclosure. Nothing
in this Section shall limit the Company’s obligations under Section 9.01 of this
Agreement.
The
Company shall promptly provide the Purchaser with information regarding
such
information security measures upon the reasonable request of the Purchaser
or
its designee (including any Master Servicer of the Mortgage Loans) which
information shall include the Company’s operations, and any other audit reports,
summaries of test results or equivalent measures or evaluations taken by
the
Company with respect to its security measures.
With
respect to any third party provided access to Customer Information in accordance
with this Agreement, the Company will enter into a written agreement with
such
third party requiring safeguarding of Customer Information in a manner
no less
restrictive than the Company’s obligations under this Agreement, and including
those affirmative obligations set forth in this Section and in any other
Section
of this Agreement relating to the use or protection of Customer
Information.
The
obligations set forth in this Section shall survive termination of the
Agreement.
-57-
Section
5.24. PMI
Obligations
The
Company shall comply with all provisions of applicable state and federal
law
relating to the cancellation of, or collection of premiums with respect
to, PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as
amended
from time to time.
ARTICLE
VI.
PAYMENTS
TO PURCHASER
Section
6.01. 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 last day of the related Due
Period
(net of charges against or withdrawals from the Custodial Account pursuant
to
Section 5.05), plus (b) all amounts, if any, which the Company is obligated
to
distribute pursuant to Section 6.03, minus (c) any amounts attributable
to
Principal Prepayments received after the applicable Due 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 5.04(i), and 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,
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 first Business
Day
following 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 be deposited in the Custodial Account by the Company
on
the date such late payment is made and shall cover the period commencing
with
the day following such first Business Day and ending with the Business
Day on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
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
6.02. Statements
to Purchaser.
Not
later
than the tenth (10th) calendar day of each month (or if such 10th day is
not a
Business Day, the Business Day immediately preceding such 10th day), the
Company
shall furnish to the Purchaser in electronic form a monthly remittance
report
via the FIDELITY reporting system in the form fields attached hereto as
Exhibit
E-1 (or such other fields as mutually agreed upon by the Company and the
Purchaser) with respect to the Mortgage Loans and the period from but including
the first day of the preceding calendar month through but excluding the
first
day of such month. Not later than the tenth (10th) calendar day of each
month
(or if such 10th day is not a Business Day, the Business Day immediately
preceding such 10th day), the Company shall furnish to the Purchaser in
electronic form a monthly defaulted loan report via the FIDELITY reporting
system in the form fields attached hereto as Exhibit E-2 (or such other
fields
as mutually agreed upon by the Company and the Purchaser) with respect
to the
Mortgage Loans and the period from but including the first day of the preceding
calendar month through but excluding the first day of such month. All such
information required pursuant to this paragraph shall be delivered on media
reasonably acceptable to the Purchaser.
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In
addition, not more than 60 days after the end of each calendar year, the
Company
shall furnish to each Person who was a Purchaser at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for
the
applicable portion of such year.
Such
obligation of the Company shall be deemed to have been satisfied to the
extent
that substantially comparable information shall be provided by the Company
pursuant to any requirements of the Internal Revenue Code as from time
to time
are in force.
The
Company shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to any
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Company shall provide
each Purchaser with such information concerning the Mortgage Loans as is
necessary for such Purchaser to prepare its federal income tax return as
any
Purchaser may reasonably request from time to time.
Section
6.03. 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 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 5.01. 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 Insurance Proceeds and Condemnation Proceeds) with
respect
to the Mortgage Loan.
ARTICLE
VII.
GENERAL
SERVICING PROCEDURES
Section
7.01. 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, 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 or LPMI Policy, if
any.
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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. In
connection with any assumption entered into by the Company, neither the
Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan
nor the outstanding principal amount of the Mortgage Loan shall be
changed.
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used by Xxxxxx Xxx 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
7.02. Satisfaction
of Mortgages and Release of Mortgage Files.
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 6.02, and may request the release of any
Mortgage
Loan Documents. In connection with any such prepayment in full, the Company
shall comply with all applicable laws regarding satisfaction, release or
reconveyance with respect to the Mortgage.
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, the Company shall deposit into the Custodial Account the entire
outstanding principal balance, plus all accrued interest on such Mortgage
Loan,
on the day preceding the Remittance Date in the month following the date
of such
release. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 5.12 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.
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Section
7.03. Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement,
the
Company shall retain the relevant Servicing Fee for each Mortgage Loan
remaining
subject to this Agreement during any month or part thereof. Such Servicing
Fee
shall be payable monthly. Additional servicing compensation in the form
of
Ancillary Income shall be retained by the Company and is not required to
be
deposited in the Custodial Account. 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) of such Monthly Payment collected by the Company.
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
7.04. Right
to Examine Company Records.
The
Purchaser 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
Company shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal government agency having jurisdiction over
the
Purchaser, including without limitation the OTS, the FDIC and other similar
entities, access to any documentation regarding the Mortgage Loans in the
possession of the Company that is required by any applicable regulations.
Such
access shall be afforded without charge, upon reasonable request, during
normal
business hours, at the offices of the Company and in accordance with any
applicable regulations.
Section
7.05. Use
of
Subservicers and Subcontractors.
For
purposes of this Agreement, the Company shall be deemed to have received
payments on Mortgage Loans immediately upon receipt by a subservicer of
such
payments. Notwithstanding any subservicing agreement or the provisions
of this
Agreement relating to agreements or arrangements between the Company and
a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Company shall remain obligated and primarily liable to the Purchaser
for
servicing and administering of the Mortgage Loans in accordance with the
provisions hereof without diminution of such obligation or liability by
virtue
of such subservicing agreements or arrangements or by virtue of indemnification
from a Subservicer and to the same extent and under the same terms and
conditions as if the Company alone were servicing and administering the
Mortgage
Loans. All actions of each Subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the Company with
the
same force and effect as if performed directly by the Company and the Purchaser
shall have no obligations, duties or liabilities with respect to any subservicer
including no obligation, duty or liability of the Purchaser to pay any
subservicer’s fees and expenses. The Company shall be entitled to enter into any
agreement with each subservicer for indemnification of the Company by the
subservicer and nothing contained in this Agreement shall be deemed to
limit or
modify such indemnification.
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ARTICLE
VIII.
AGENCY
TRANSFER; SECURITIZATION TRANSACTION
Section
8.01. Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency Transfer,
or a Securitization Transaction on One or More Reconstitution
Dates.
The
Purchaser and the Company agree that with respect to some or all of the
Mortgage
Loans, from time to time the Purchaser shall:
(1) Effect
an
Agency Transfer, and/or
(2) Effect
a
Whole Loan Transfer, and/or
(3) Effect
a
Securitization Transaction,
in
each
case retaining the Company as the Company thereof to service the Mortgage
Loans
on a “scheduled/scheduled” basis. On the related Reconstitution Date, the
Mortgage Loans transferred shall cease to be covered by this Agreement,
except
with respect to the right of the Purchaser to cause a transfer of the servicing
responsibilities with respect to the Mortgage Loans in accordance with
Section
8.02 hereof.
(a) Unless
otherwise agreed to between the Purchaser and the Company, the Purchaser
shall
take commercially reasonable efforts to give the Company 15 days notice
of any
Securitization Transaction, Agency Transfer or Whole Loan Transfer. The
Company
shall cooperate with the Purchaser in connection with any Agency Transfer,
Securitization Transaction or Whole Loan Transfer contemplated by the Purchaser
pursuant to this Section 8.01. In that connection, the Company shall:
(i) execute
any Reconstitution Agreement within a reasonable period of time after receipt
of
any Reconstitution Agreement which time shall be sufficient for the Company
and
Company’s counsel to review such Reconstitution Agreement, but such time shall
not exceed ten (10) days after such receipt; in the case of any Agency
Transfer,
the Reconstitution Agreements shall be those customarily employed by Xxxxxx
Mae
or Xxxxxxx Mac for transactions of such nature. Such Reconstitution Agreement
may require the Company to remit premium payments with respect to any LPMI
Policy to the related insurer;
(ii) negotiate
and execute all agreements executed in connection with such Agency Transfer,
Whole Loan Transfer or Securitization Transaction that govern the servicing
and
administration of the Mortgage Loans (and any agreements and other documents
incidental thereto) as the Purchaser shall reasonably request, provided
that, in
the case of a Whole Loan Transfer or Securitization Transaction, the servicing
provisions contained therein shall be substantially similar to those contained
in this Agreement and shall not contain any obligations materially more
onerous
than those contained herein that increase the expenses or obligations of
the
Company, unless otherwise mutually agreed by the parties (provided,
that
each of the Company and the Purchaser is given an opportunity to review
and
reasonably negotiate in good faith the content of such documents not
specifically referenced or provided herein), which governing documents,
in the
case of a Securitization Transaction, shall contain provisions customarily
included in publicly issued or privately placed rated secondary mortgage market
transactions; in the case of any Agency Transfer, the Reconstitution Agreements
shall be those customarily employed by Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx
Mac for
transactions of such nature;
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(iii) cooperate
fully with the Purchaser, Xxxxxx Mae, Xxxxxxx Mac, the trustee or a third
party
purchaser and any prospective purchaser, at the Purchaser’s expense, with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, Xxxxxx Mae, Xxxxxxx Mac,
bond
insurers, guarantors, loss mitigation or credit risk management advisors
and
such other parties as the Purchaser shall designate and participating in
meetings with prospective purchasers of the Mortgage Loans or interests
therein
and providing information contained in the Mortgage Loan Schedule including
any
diskette or other related data tapes provided as reasonably requested by
such
purchasers;
(iv) negotiate
and execute one or more loss mitigation advisory or credit risk management
agreements between the Company and any loss mitigation or credit risk management
advisor designated by the Purchaser in its sole discretion;
(v) negotiate
and execute one or more master servicing agreements between the Company
and any
third party servicer which is servicing loans on behalf of the Purchaser
providing for such third party servicer to master service such Mortgage
Loans on
behalf of the Purchaser;
(vi) negotiate
and execute one or more subservicing agreements between the Company and
any
master servicer which is generally considered to be a prudent master servicer
in
the secondary mortgage market designated by the Purchaser in its sole discretion
after consultation with the Company and/or one or more custodial and servicing
agreements among the Purchaser or an Affiliate of the Purchaser, the Company
and
a third party custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the Purchaser
in its sole discretion after consultation with the Company, in either case
for
the purpose of pooling the Mortgage Loans with other mortgage loans for
resale
or securitization;
(vii) deliver
to the Purchaser and to any Person designated by the Purchaser (a) for
inclusion
in any prospectus or other offering material such publicly available information
regarding the Company, its financial condition and its mortgage loan
delinquency, foreclosure and loss experience and any additional information
requested by the Purchaser, (b) any similar non-public, unaudited financial
information (which the Purchaser may, at its option and at its cost, have
audited by certified public accountants) and such other information as
is
reasonably requested by the Purchaser and which the Company is capable
of
providing without unreasonable effort or expense, and to indemnify the
Purchaser
and its Affiliates for material misstatements contained in such information,
and
(c) such statements and audit letters of reputable, certified public accountants
pertaining to information provided by the Company pursuant to clause (a)
above
as shall be reasonably requested by the Purchaser; and
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(viii) provide,
on an ongoing basis from information obtained through its servicing of
the
Mortgage Loans, any information necessary to enable the “tax matters person” for
any REMIC in a Securitization Transaction, including any Master Servicer
or
trustee acting in such capacity, to perform its obligations in accordance
with
applicable law and customary secondary mortgage market standards for securitized
transactions.
(b)
The
Company shall provide to the Purchaser or issuer, as the case may be, and
any
other participants in such Agency Transfer, Whole Loan Transfer or
Securitization Transaction, (i) any and all information with respect to
itself,
its servicing portfolio or the Mortgage Loans 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 or any
such
other participant shall request upon reasonable demand and (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 Xxxxxx Mae, Xxxxxxx Mac, the trustee,
such
third party purchaser, any Master Servicer, any Rating Agency or the Purchaser,
as the case may be, in connection with such transactions.
(c) To
the
extent required by the applicable Reconstitution Agreements or otherwise
requested by the Purchaser in connection with a Reconstitution, the Company
shall prepare Assignments of Mortgage in form and substance acceptable
to Xxxxxx
Mae, Xxxxxxx Mac, the trustee or such third party, as the case may be,
for each
Mortgage Loan that is part of a Reconstitution. 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 Xxxxxx Mae, Xxxxxxx Mac,
the
trustee or such third party, as the case may be, upon the Company’s receipt
thereof. The Purchaser shall pay all pre-approved, reasonable and necessary
fees
associated with the preparation, recording and tracking of such Assignments
of
Mortgage.
All
Mortgage Loans not sold or transferred pursuant to an Agency Transfer,
Securitization Transaction or Whole Loan Transfer and any and all Mortgage
Loans
repurchased by the Purchaser pursuant to Section 8.03 below with respect
to an
Agency Transfer, Securitization Transaction or Whole Loan Transfer or otherwise
directly or indirectly reacquired by the Purchaser or its designee upon
termination of an Agency Transfer or Securitization Transaction or otherwise,
shall be 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.
Section
8.02. Transfer
of Servicing Following Reconstitution.
Following
a Reconstitution of Mortgage Loans, the Purchaser or its designee (which
may
include the master servicer, trustee, insurer, guarantor or certificateholders)
shall have the right, in its sole discretion, to cause the Company at any
time
under any Reconstitution Agreement to transfer the servicing responsibilities
and duties with respect to some or all of the Mortgage Loans serviced thereunder
to the Purchaser or any designee of the Purchaser; provided, however, that
the
Purchaser shall provide the Company with 30 days prior written notice and
shall
pay to the Company a termination fee identical to the “termination without cause
fee” structure set forth in Section 11.02, provided further that such transfer
shall be subject to the approval of Xxxxxx Mae or Xxxxxxx Mac, as the case
may
be, with respect to Agency Transfers, the trustee, Master Servicer or Rating
Agencies with respect to Securitization
Transactions
or any
relevant third party purchaser with respect to Whole Loan Transfers. No
termination fee shall be paid or payable for any Mortgage Loans with respect
to
which any payment is more than 90 days past due as of the date of such
termination. The Company agrees to cooperate with the Purchaser in such
transfer
of servicing responsibilities and shall comply with the termination procedures
set forth in Sections 10.01 and 12.01 hereof.
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Section
8.03. Purchaser’s
Repurchase and Indemnification Obligations.
Upon
receipt by the Company of notice from Xxxxxx Xxx, Xxxxxxx Mac or other
such
third party purchaser of a breach of any Purchaser representation or warranty
contained in any Reconstitution Agreement or a request by Xxxxxx Mae, Xxxxxxx
Mac, the trustee or third party purchaser as the case may be, for the repurchase
of any Mortgage Loan transferred to Xxxxxx Mae or Xxxxxxx Mac pursuant
to an
Agency Transfer or to a trustee pursuant to a Securitization
Transaction
or to a
third party purchaser pursuant to a Whole Loan Transfer, the Company shall
promptly notify the Purchaser of same and shall, at the direction of the
Purchaser, use its best efforts to cure and correct any such breach and
to
satisfy the requests or concerns of Xxxxxx Mae, Xxxxxxx Mac, the trustee
or the
third party purchaser related to such deficiencies of the related Mortgage
Loans
transferred to Xxxxxx Mae, Xxxxxxx Mac, the trustee or other such third
party
purchaser.
The
Purchaser shall repurchase from the Company any Mortgage Loan transferred
to
Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee
pursuant to a Securitization
Transaction
or to a
third party purchaser pursuant to a Whole Loan Transfer with respect to
which
the Company has been required by Xxxxxx Mae, Xxxxxxx Mac, the trustee or
such
third party purchaser to repurchase due to a breach of a representation
or
warranty made by the Purchaser with respect to the Mortgage Loans, or the
servicing thereof prior to the related Closing Date to Xxxxxx Mae, Xxxxxxx
Mac,
the trustee or any third party purchaser in any Reconstitution Agreement
and not
due to a breach of the Company’s representations or obligations thereunder or
pursuant to this Agreement. The repurchase price to be paid by the Purchaser
to
the Company shall equal that repurchase price paid by the Company to Xxxxxx
Mae,
Xxxxxxx Mac, or the third party purchaser plus all reasonable costs and
expenses
borne by the Company in connection with the cure of said breach of a
representation or warranty made by the Purchaser and in connection with
the
repurchase of such Mortgage Loan from Xxxxxx Mae, Xxxxxxx Mac, the trustee
or
the third party purchaser, including, but not limited to, reasonable and
necessary attorneys’ fees.
At
the
time of repurchase, the Custodian and the Company shall arrange for the
reassignment of the repurchased Mortgage Loan to the Purchaser according
to the
Purchaser’s instructions and the delivery to the Custodian of any documents held
by Xxxxxx Mae, Xxxxxxx Mac, the trustee or other relevant third party purchaser
with respect to the repurchased Mortgage Loan pursuant to the related
Reconstitution Agreement. In the event of a repurchase, the Company shall,
simultaneously with such reassignment, give written notice to the Purchaser
that
such repurchase has taken place, and amend the Mortgage Loan Schedule to
reflect
the addition of the repurchased Mortgage Loan to this Agreement. In connection
with any such addition, the Company and the Purchaser shall be deemed to
have
made as to such repurchased 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
repurchase.
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Section
8.04. Transfer
Of Servicing.
In
the
event that the Company’s duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the provisions of this Agreement,
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 by the
Purchaser. The Company shall deliver promptly to the successor Company
the funds
in the Custodial 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.
Section
8.05. Compliance
with Regulation AB
For
purposes of compliance with Regulation AB and certain additional obligations,
notwithstanding anything in this Agreement to the contrary, the parties
hereto
hereby agree to comply with the terms of Exhibit I.
ARTICLE
IX.
THE
COMPANY
Section
9.01. Indemnification;
Third Party Claims.
(a)
The
Company shall indemnify the Purchaser and hold it harmless against any
and all
claims, losses, damages, penalties, fines, and forfeitures, including,
but not
limited to 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 or
any
Reconstitution Agreement entered into pursuant to Section 8.01. The Company
immediately shall notify the Purchaser if a claim is made by a third party
with
respect to this Agreement or any Reconstitution Agreement or the Mortgage
Loans,
shall promptly notify Xxxxxx Xxx, Xxxxxx Xxx, Xxxxxxx Mac, or the trustee
with
respect to any claim made by a third party with respect to any Reconstitution
Agreement, 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 Company agrees that it will not enter into
any
settlement of any such claim without the consent of the Purchaser unless
such
settlement includes an unconditional release of the Purchaser from all
liability
that is the subject matter of such claim. In addition to the obligations
of the
Company set forth in this Section 9, the Purchaser may pursue any and all
remedies otherwise available at law or in equity, including, but not limited
to,
the right to seek damages. The provisions of this Section 9.01 shall survive
termination of this Agreement. 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 4.03, or the failure of the Company to service and administer
the
Mortgage Loans in strict compliance with the terms of this Agreement or
any
Reconstitution Agreement.
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The
obligations of the Company arising under this Section 9.01 shall survive
any
sale, assignment, resignation or termination of the Company, or the termination
of this Agreement.
Section
9.02. Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises
as a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is
or shall
be necessary to protect the validity and enforceability of this Agreement
or any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
person into which the 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 (i) having a net worth of not
less than
$25,000,000, (ii) whose deposits are insured by the FDIC through the BIF
or the
SAIF, and (iii) which is a Xxxxxx Mae- and Xxxxxxx Mac-approved servicer
in good
standing.
Section
9.03. 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 liability which would otherwise be imposed by reason of any breach
of the
terms and conditions of 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.
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Section
9.04. Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
Purchasers 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 hereunder
or
delegate its rights or duties hereunder or any portion hereof (to other
than a
third party in the case of outsourcing routine tasks such as taxes, insurance,
mortgage release and property inspection, in which case the Company shall
be
fully liable for such tasks as if the Company performed them itself) or
sell or
otherwise dispose of all or substantially all of its property or assets
without
the prior written consent of the Purchaser, which consent shall be granted
or
withheld in the reasonable discretion of the Purchaser.
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 9.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof (to other
than
a third party in the case of outsourcing routine tasks such as taxes, insurance,
mortgage release and property inspection, in which case the Company shall
be
fully liable for such tasks as if the Company performed them itself) or
sell or
otherwise dispose of all or substantially all of its property or assets,
without
the prior written consent of the 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.
Section
9.05. Limitation
on Assignment by the Company.
This
Agreement shall not be assigned, pledged or hypothecated by the Company
to a
third party without the prior written consent of the Purchaser, which consent
shall be granted or withheld in the sole discretion of the
Purchaser.
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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 one
Business Day 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) the
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 which continues unremedied for a period of 10 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
(iii) failure
by the Company to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Property is located;
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 decree 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 for three Business Days; or
(vii) the
Company ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac
servicer; or
(viii) the
Company fails to maintain a minimum net worth of $25,000,000; or
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(ix) the
Company attempts to assign its right to servicing compensation hereunder
or the
Company attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof (to other than a third party in the case
of
outsourcing routine tasks such as taxes, insurance, mortgage release and
property inspection, in which case the Company shall be fully liable for
such
tasks as if the Company performed them itself) in violation of Section
9.05.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever 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, (i) may terminate all the
rights
and obligations of the Company under this Agreement and in and to the Mortgage
Loans and the proceeds thereof and (ii) may terminate any commitment the
Purchaser has entered into to purchase additional Mortgage Loans from the
Company hereunder.
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 Mortgage 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 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.
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ARTICLE
XI.
TERMINATION
Section
11.01. Termination.
This
Agreement shall terminate upon the earlier of: (i) 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 and (ii) the exercise
of the
Purchaser’s right pursuant to Section 10.01 to terminate this Agreement upon an
Event of Default. All representations, warranties, rights to audits, indemnity
obligations, and other remedies available to the Purchaser under this Agreement,
at law or in equity, will survive the termination of this
Agreement.
Section
11.02. Termination
Without Cause.
This
Agreement and the Company’s rights hereunder with respect to some or all of the
Mortgage Loans shall terminate upon: (i) the later of (a) the distribution
of
the final payment or liquidation proceeds on the last Mortgage Loan to
the
Purchaser (or advances by the Company for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and
the
remittance of all funds due hereunder, or (ii) mutual consent of the Company
and
the Purchaser in writing or (iii) at the sole option of the Purchaser,
without
cause, upon 30 days written notice, subject to the limitations set forth
below.
Any such notice of termination shall be in writing and delivered to the
Company
by registered mail to the address set forth at the beginning of this Agreement.
The Purchaser and the Company shall comply with the termination procedures
set
forth in Sections 10.01 and 12.01 hereof.
In
the
event the Purchaser terminates the Company without cause with respect to
some or
all of the Mortgage Loans, the Purchaser shall be required to give the
Company
30 days prior written notice of such termination and pay to the Company
a
termination fee equal to the fair market value of the servicing rights
being
terminated, as determined, at the cost of the Purchaser, by an independent
broker of servicing rights or such other company as is reasonably qualified
to
determine the fair market value of such servicing rights; provided, further,
that (a) such broker or other company shall be mutually agreed upon, which
agreement must not be unreasonably withheld or delayed and (b) no termination
fee shall be paid or payable with respect to the unpaid principal balance
of any
Distressed Mortgage Loan. The termination fee provided for in this Section
11.02
shall be paid by the Purchaser within ten (10) Business Days of any such
termination without cause.
Subject
to the requirements set forth in this paragraph, the Company may terminate
this
Agreement with respect to the servicing of those Mortgage Loans that are
determined to be Distressed Mortgage Loans as of the Notice Date and servicing
of such Mortgage Loans shall be transferred to the Special Servicer. The
Company
shall be responsible for the delivery of all required transfer notices
and will
send a copy of the transfer notice to the Master Servicer. Not later than
the
Business Day immediately following the Distressed Mortgage Loan Transfer
Date,
the Company shall deliver to the Special Servicer, with respect to the
Distressed Mortgage Loans that were transferred to the Special Servicer
on such
Distressed Mortgage Loan Transfer Date, all related Servicing Files and
a loan
level tape or other electronic media containing loan set-up information
in form
reasonably acceptable to the Special Servicer. No termination fee shall
be
payable to Company with respect to Mortgage Loans that transfer to a Special
Servicer.
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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 9.04, 10.01, 11.01 (ii) or pursuant to Section 11.02
after
the 30 day period has expired, 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
clauses (i) through (iii) of Section 9.02 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
4.01 and
4.02 and the remedies available to the Purchaser under Sections 4.03 and
4.04,
it being understood and agreed that the provisions of such Sections 4.01,
4.02,
4.03, and 4.04 shall be applicable to the Company notwithstanding any such
sale,
assignment, resignation or termination of the Company, or the termination
of
this Agreement.
Within
30
days of the appointment of a successor entity by the Purchaser, the Company
shall prepare, execute and deliver to the successor entity any and all
documents
and other instruments, place in such successor’s possession all Servicing Files,
and do or cause to be done all other acts or things necessary or appropriate
to
effect the purposes of such notice of termination, including but not limited
to
the transfer of the Mortgage Notes and related documents. The Company shall
cooperate with the Purchaser and such successor in effecting the termination
of
the Company’s responsibilities and rights hereunder and the transfer of
servicing responsibilities to the successor servicer, including without
limitation, the transfer to such successor for administration by it of
all cash
amounts which shall at the time be credited by the Company to the Custodial
Account or Escrow Account or thereafter received with respect to the Mortgage
Loans.
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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 4.01, 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 9.04, 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 and Escrow Account and all Mortgage 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 12.07.
Section
12.02. Amendment.
This
Agreement may be amended from time to time by the Company and the Purchaser
by
written agreement signed by the Company and the Purchaser.
Section
12.03. Closing.
Each
closing for the purchase and sale of Mortgage Loans hereunder 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.
Each
closing for a Mortgage Loan Package shall be subject to each of the following
conditions:
(a) no
later
than the date set forth in the related Purchase Price and Terms Letter,
the
Company shall deliver to the Purchaser a Mortgage Loan Schedule with respect
to
the Mortgage Loans to be purchased and sold on such date;
(b) all
of
the representations and warranties of the Company under this Agreement
shall be
true and correct as of the related Closing Date and no event shall have
occurred
which, with notice or the passage of time, would constitute a default under
this
Agreement;
(c) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents as specified in Section 12.04 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;
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(d) the
Company shall have delivered and released to the Custodian on or prior
to the
related Closing Date all documents required pursuant to the Custodial Agreement;
and
(e) the
Company
shall not have experienced any Material Adverse Change. For the purposes
of this
Section 12.03, “Material Adverse Change” shall mean, (i) a material adverse
change in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the Company;
(ii)
a material impairment of the ability of the Company, to perform under this
Agreement or any related agreements (the “Operative Agreements”); or (iii) a
material adverse effect upon the legality, validity, binding effect or
enforceability of any Operative Agreement against the Company; and
(f) all
other
terms and conditions of this Agreement and the related Purchase Price and
Terms
Letter shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on
the
related Closing Date the Purchase Price, plus accrued interest pursuant
to
Article III of this Agreement, plus the costs specified in Section 12.11
or in
the related Purchase Price and Terms Letter by wire transfer of immediately
available funds to the account designated by the Company.
Section
12.04. Closing
Documents.
(a) The
closing documents to be delivered on the initial Closing Date shall consist
of
fully executed originals of the following documents, as well as the documents
referred to in Section 12.04(b):
(i) this
Agreement;
(ii) a
Custodial Account Letter Agreement or a Custodial Account Certification,
as
applicable, in the form of Exhibit C-1 or Exhibit C-2 hereto, as
applicable;
(iii) an
Escrow
Account Letter Agreement or an Escrow Account Certification, as applicable,
in
the form of Exhibit D-1 or Exhibit D-2 hereto, as applicable;
(iv) an
Officer’s Certificate, in the form of Exhibit F hereto, including all
attachments thereto; and
(v) an
Opinion of Counsel of the Company, in the form of Exhibit G hereto.
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(b) The
closing documents for the Mortgage Loans to be purchased on each Closing
Date
under this Agreement (including the initial Closing Date) shall consist
of fully
executed originals of the following documents:
(i) the
related Purchase Price and Terms Letter;
(ii) the
related Acknowledgment and Conveyance Agreement, including all annexes
thereto;
(iii) each
of
the documents required to be delivered by the Company pursuant to Section
2.03
hereof;
(iv) an
assignment and assumption of the Custodial Agreement;
(v) an
initial certification of the Custodian;
(vi) (A)
a
Security Release Certification, in the form of Exhibit H-1 hereto (if Company
is
a member of the Federal Home Loan Bank System), executed by the applicable
regional Federal Home Loan Bank and, (B) if applicable, a Security Release
Certification, in the form of Exhibit H-2 hereto, executed by any other
person,
as requested by the Purchaser, if any of the Mortgage Loans have at any
time
been subject to any security interest, pledge or hypothecation for the
benefit
of such person and (C) if applicable, a certificate of the Company and
an
opinion of counsel of the Company stating that the Mortgage Loans are not
subject to any security interest, claim, pledge, hypothecation or lien;
(vii) a
Certificate or other evidence of merger or change of name, signed or stamped
by
the applicable regulatory authority, if any of the Mortgage Loans were
acquired
by the Company by merger or acquired or originated by the Company while
conducting business under a name other than its present name;
(viii) upon
request by the Purchaser, an Officer’s Certificate, in the form of Exhibit F
hereto, including all attachments thereto; and
(ix) upon
request by the Purchaser, an Opinion of Counsel to the Company, in the
form of
Exhibit G hereto.
The
Company shall bear the risk of loss of the Closing Documents until such
time as
they are received by the Purchaser or its attorneys.
Section
12.05. 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 the State of New York. THIS AGREEMENT SHALL BE GOVERNED BY
AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-75-
Section
12.06. 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
12.07. Notices.
All
notices, requests, demands and other communications which are required
or
permitted to be given under this Agreement shall be in writing and shall
be
deemed to have been duly given upon the delivery or mailing thereof, as
the case
may be, sent by registered or certified mail, return receipt requested,
or, if
by other means, when received by the other party at the address shown in
this
Section 12.07, or such other address as may hereafter be furnished to the
other
party by like notice. Any such demand, notice or communication hereunder
shall
be deemed to have been received on the date delivered to or received at
the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt):
(i) if
to the
Company:
National
City Mortgage Co.
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxx
with
a
copy to:
National
City Mortgage Co.
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
(ii) if
to the
Purchaser:
Xxxxxx
Brothers Bank, FSB,
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Manager, Contract Finance
Section
12.08. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement that is prohibited
or
that 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 that 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 that 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.
-76-
Section
12.09. 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
12.10. 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
12.11. Assignments
of Mortgage; Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees
and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including fees for
the
preparation and tracking of Assignments of Mortgage, fees for title policy
endorsements and continuations and the Company’s attorney’s fees, shall be paid
by the Company. In
addition, the Company
shall pay any fees related to the set up of all tax contracts or flood
insurance
contracts for the Mortgage Loans and Company
shall be responsible for the payment of any costs associated with the transfer
of the tax insurance contracts or flood insurance contracts to the ultimate
servicer. Company
shall indemnify the Purchaser for any losses or liabilities incurred during
the
period from the Closing Date of the Mortgage Loans until the set up of
the tax
service contracts or flood insurance contracts resulting from nonexistence
of
the tax service contracts or flood insurance contracts during this interim
period. On
the
related Closing Date, the Company shall pay to the Purchaser a fee of $25.00
per
Mortgage Loan with respect to Mortgage Loans which are not MERS Mortgage
Loans
for the initial recordation of the Assignments of Mortgage (the “Assignment
Fees”), which Assignment Fees shall be deducted from the actual Purchase Price
proceeds paid to the Company on such Closing Date. To the extent a Mortgage
Loan
does not have a tax service contract or a flood insurance contract in place
on
the related Closing Date, the Company shall a fee of $75.00 per Mortgage
Loan
with respect to the set up of all tax service contracts and a fee of $18.00
per
Mortgage Loan with respect to the set up of all flood insurance contracts,
the
cost of which fees shall be deducted from the actual Purchase Price proceeds
paid to the Company on such Closing Date. The Company shall be responsible
for
the payment of any costs associated with the transfer of the tax service
contracts or flood insurance contracts to a subsequent servicer in the
event
that the Company may be terminated as servicer under this Agreement pursuant
to
Section 10.01.
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Section
12.12. 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. Upon such assignment of rights and assumption of obligations,
the
assignee or designee shall accede to the rights and obligations hereunder
of the
Purchaser with respect to such Mortgage Loans and the Purchaser as assignor
shall be released from all obligations hereunder with respect to such Mortgage
Loans from and after the date of such assignment and assumption. All references
to the Purchaser in this Agreement shall be deemed to include its assignee
or
designee.
Section
12.13. No
Personal Solicitation.
From
and
after the related Closing Date, the Company hereby agrees that it will
not take
any action or permit or cause any action to be taken by any of its agents
or
Affiliates, or by any independent contractors on the Company’s behalf, to
personally, by telephone or mail, solicit the borrower or obligor under
any
related Mortgage Loan for any purpose whatsoever, including but not limited
to
any pay-off requests or refinance of a Mortgage Loan, in whole or in part,
without the prior written consent of the Purchaser. It is understood and
agreed
that all rights and benefits relating to the solicitation of any Mortgagors
and
the attendant rights, title and interest in and to the list of such Mortgagors
and data relating to their Mortgages (including insurance renewal dates)
shall
be transferred to the Purchaser pursuant hereto on the related Closing
Date and
the Company shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by or on behalf of the Company or any Affiliate of the Company
which
are directed to the general public at large, including, without limitation,
mass
mailing based on commercially acquired mailing lists, newspaper, radio
and
television advertisements, and solicitations to the public, including the
Mortgagors, for financial products and services other than mortgage loans,
shall
not constitute solicitation under this Section 12.13. The provisions of
this
Section 12.13 survive any termination of this Agreement.
Section
12.14. Confidential
Information
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser’s prior written consent, the Purchase Price paid by the Purchaser for
any Mortgage Loan or Mortgage Loan Package, except to the extent that it
is
appropriate for the Company to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
The
Company hereby acknowledges that the Purchaser is subject to certain privacy
and
information security laws and regulations pursuant to which the Purchaser
is
required to obtain certain undertakings from the Company with regard to
the
privacy, use and protection of nonpublic personal financial information
of the
Mortgagors and certain other parties. Therefore, notwithstanding anything
to the
contrary contained in this Agreement, the Company agrees that (a) it shall
keep
all Customer Information strictly confidential and shall not disclose or
use any
Customer Information except to the extent necessary to carry out its obligations
under this Agreement and for no other purpose and (b) it shall not disclose
Customer Information to any third party, including, without limitation,
its
third party service providers, without the prior consent of the Purchaser
and an
agreement in writing from the third party to use or disclose such Customer
Information only to the extent necessary to carry out the Company's obligations
under this Agreement and for no other purposes. At any time at the request
and
option of the Purchaser and in the event of termination or expiration of
this
Agreement (or any part thereof), the Company agrees to promptly: (x) return
to
the Purchaser all Customer Information; or (y) properly destroy or permanently
erase (on all forms of recordation), in a manner consistent with the Purchaser’s
obligations under applicable laws and regulations, the Customer Information
and,
if requested by the Purchaser, acknowledge in writing that all such Customer
Information has been destroyed or permanently erased. The obligations set forth
in this Section shall survive termination of this Agreement.
-78-
Section
12.15. Appointment
and Designation of Master Servicer.
The
Purchaser may, in its sole discretion from time to time, engage a master
servicer (the “Master Servicer”) to assist the Purchaser in the supervision of
the performance by the Company of its obligations and responsibilities
arising
under this Agreement. In the event that the Purchaser so appoints a Master
Servicer, the Purchaser shall provide written notice thereof to the Company.
From the date of such notice until such time as the Company receives written
notice from the Purchaser that it has terminated or replaced such Master
Servicer, the Company shall deliver all notices, reports and remittances
that
the Company is obligated to deliver to the Purchaser under this Agreement
directly to the Master Servicer named in such notice (or to any successor
master
servicer named in any subsequent written notice received from the Purchaser).
The Master Servicer, acting on behalf of the Purchaser, shall have the
benefit
of the covenants and agreements of the Company under this Agreement and
the
Master Servicer, acting on behalf of the Purchaser, shall have the same
rights
as the Purchaser to enforce the obligations of the Company arising under
this
Agreement. The Master Servicer shall be entitled to terminate the rights
and
obligations of the Company under this Agreement upon the occurrence of
an Event
of Default as provided in this Agreement. Notwithstanding anything herein
to the
contrary, in no event shall the Master Servicer assume any of the obligations
of
the Purchaser under this Agreement; and in connection with the performance
of
the Master Servicer’s duties hereunder the Company agrees that the Master
Servicer shall be entitled to all of the rights, protections, indemnities
and
limitations of liability afforded to the Purchaser under this Agreement.
The
Purchaser hereby appoints Aurora Loan Services LLC as its initial Master
Servicer hereunder.
Section
12.16. 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.
-79-
The
Purchaser and the Company 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.
Section
12.17. Further
Agreements.
Without
limiting the generality of the foregoing, the Company shall cooperate with
the
Purchaser in connection with the initial resales of the Mortgage Loans
by the
Purchaser. In that connection, the Company 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 Company as are reasonably believed
necessary
by the Purchaser in connection with such resales. Prior to incurring any
out-of-pocket expenses pursuant to this paragraph, the Company shall notify
the
Purchaser in writing of the estimated amount of such expense. The Purchaser
shall reimburse the Company for any such reasonable expense following its
receipt of appropriate details thereof.
Section
12.18. Intention
of the Parties.
It
is the
intention of the parties that the Purchaser is purchasing, and the Company
is
selling, 100% ownership interest in the Mortgage Loans and not a debt instrument
of the Company or another security. Accordingly, the parties hereto each
intend
to treat each transaction for federal income tax purposes as a sale by
the
Company, and a purchase by the Purchaser, of the Mortgage Loans. Moreover,
the
arrangement under which the Mortgage Loans are held shall be consistent
with
classification of such arrangement as a grantor trust in the event it is
not
found to represent direct ownership 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 Company
shall cooperate with all reasonable requests made by the Purchaser in the
course
of such review.
Section
12.19. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
12.20. 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;
-80-
(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
12.21. Documents
Mutually Drafted.
The
Company and the Purchaser agree that this Agreement and each other document
prepared in connection with the transactions set forth herein have been
mutually
drafted and negotiated by each party, and consequently such documents shall
not
be construed against either party as the drafter thereof.
-81-
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.
XXXXXX
BROTHERS BANK, FSB
By:
Name:
Xxxx X. Xxxxxx
Title:
Vice President
NATIONAL
CITY MORTGAGE CO.
By:
Name:
Title:
-00-
XXXXXXX
X-0
FORM
OF
ACKNOWLEDGMENT AND CONVEYANCE AGREEMENT
(Group
No. 200_-____)
This
is
an Acknowledgment and Conveyance Agreement delivered pursuant to that certain
Amended and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement, dated as of May 1, 2007 (the “Agreement”),
between XXXXXX BROTHERS BANK, FSB (the “Purchaser”),
and
NATIONAL CITY MORTGAGE CO. (the “Company”).
All
capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Agreement.
The
Purchaser and the Company hereby confirm that they have reached agreement
on the
purchase, sale and servicing of the Mortgage Loans described on the Mortgage
Loan Schedule attached as Annex 1 hereto on the terms and conditions set
forth
in the Purchase Agreement (which terms and conditions are incorporated
herein by
this reference) and the Purchase Price and Terms Letter, dated as of
[___________ __, 200_] between the parties hereto.
Accordingly,
on this [___ day of _________, 200_], the Company does hereby sell, transfer,
assign, set over and convey to the Purchaser all right, title and interest
of
the Company in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached as Annex 1 hereto, including all interest and principal received
by the
Company on or with respect to the Mortgage Loans after the related Cut-off
Date,
together with all of the Company’s right, title and interest in and to each
Custodial Account and all amounts from time to time credited to and the
proceeds
of such Custodial Account, all amounts from time to time credited to and
the
proceeds of any Escrow Account, any Liquidation Proceeds or Condemnation
Proceeds, any REO Disposition Proceeds, the Company’s rights under any insurance
policies related to the Mortgage Loans, the Policy related to each Mortgage
Loan
and all rights of the Company thereunder, any Insurance Proceeds, the Company’s
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties, and any proceeds of the foregoing.
Pursuant
to Article II of the Agreement, the Company has delivered to the Custodian
the
documents for each Mortgage Loan to be purchased as set forth in the Agreement.
The ownership of each Mortgage Note, Mortgage, and the contents of each
Mortgage
File is vested in the Purchaser and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into
the
possession of the Company shall immediately vest in the Purchaser.
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement,
the
Company represents and warrants to the Purchaser that each of the
representations and warranties contained in Sections 4.01 and 4.02 of the
Agreement and Annex
2
hereto
is true and correct as of the date hereof with respect to the Company and
each
of the Mortgage Loans listed on the Mortgage Loan Schedule attached as
Annex
1
hereto.
In addition, the Company represents and warrants to the Purchaser that
the
Underwriting Guidelines set forth on Annex
3
hereto
are the Underwriting Guidelines used by the Company with respect to the
origination of the Mortgage Loans in this Mortgage Loan Package.
A-1-1
By
its
execution and delivery of this Acknowledgment and Conveyance Agreement,
the
Company agrees that it shall service the Mortgage Loans on behalf of the
Purchaser in accordance with the terms and conditions contained in the
Agreement.
This
Acknowledgment and Conveyance Agreement may be executed simultaneously
in any
number of counterparts. Each counterpart shall be deemed an original, and
all
such counterparts shall constitute one and the same instrument.
NATIONAL
CITY MORTGAGE CO.,
as
Company
By: _____________________________________
Name:
Title:
XXXXXX
BROTHERS BANK, FSB, as Purchaser
By:
_____________________________________
Name:
Title:
A-1-2
Annex
1
to
Acknowledgment
and Conveyance Agreement
MORTGAGE
LOAN SCHEDULE
[Each
Mortgage Loan Schedule shall provide the information required by Exhibit
A-2 to
the Agreement with respect to each Mortgage Loan and the related Cut-Off
Date.]
A-1-1
Annex
2
to
Acknowledgment
and Conveyance Agreement
POOL
CHARACTERISTICS
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, that as of May 1, 2007 or as of such other date specifically provided
therein:
Pool
Characteristics.
[“Pool
1 Mortgage Loans” are the group of _________ Mortgage Loans set forth on the
Mortgage Loan Schedule, “Pool 2 Mortgage Loans” are the group of _________
Mortgage Loans set forth on the Mortgage Loan Schedule.] With respect to
the
aggregate unpaid principal balance of all of the Mortgage Loans as of the
Closing Date, (a) the Mortgage Loans are secured by real property improved
by
one- to four- family dwellings with original terms of up to [___] years,
(b)
with respect to each ARM Mortgage Loan the Index shall be as set forth
on the
Mortgage Loan Schedule, (c) the maximum Mortgage Interest Rate of the Mortgage
Loans is [___]%, (d) the minimum Mortgage Interest Rate of the Mortgage
Loans is
[___]%, (e) the Mortgage Loans have a weighted average remaining term of
[___]
months, (f) each of the Mortgaged Properties consists of a single parcel
of real
property of which (i) at least [___]% are attached or detached one family
residences, (ii) approximately [___]% are individual condominium units
in a
condominium project, (iii) approximately [___]% are units in planned unit
developments, (iv) approximately [___]% are two-to-four family residential
dwellings, (v) not more than [___]% are townhouses and (vi) not more than
[___]%
are manufactured housing which are permanently affixed to the ground, (g)
no
more than [___]% of the Mortgage Loans are rate-term refinance mortgage
loans,
(h) no more than [___]% of the Mortgage Loans are cash out refinance mortgage
loans, (i) at least [___]% of the Mortgage Loans are purchase money mortgage
loans, (j) the Mortgaged Properties are located as follows (i) approximately
[___]% in [___], (ii) approximately [___]% in [___] and (iii) no other
state
shall contain a percentage which is greater than [___]% and (k) with respect
to
the ARM Mortgage Loans, the weighted average initial period gross Lifetime
Rate
Cap shall be [___]% and the weighted average lifetime Mortgage Interest
Rate of
[___]%. With respect to the aggregate unpaid principal balance of the Mortgage
Loans at the time of origination, (a) no more than [___]% of the Mortgaged
Properties were investment properties and (b) at least [___]% of the Mortgaged
Properties were owner-occupied primary residences. With respect to the
aggregate
unpaid principal balance of the Mortgage Loans, (a) at least [___]% of
the
Mortgage Loans shall have full documentation, (b) no more than [___]% of
the
Mortgage Loans shall have stated income documentation and (c) no more than
[___]% of the Mortgage Loans shall have alternate income documentation.
The
maximum LTV at origination of the Mortgage Loans in Pool 1 was not more
than
[___]% and the maximum LTV at origination of the Mortgage Loans in Pool
2 was
not more than [___]%. The weighted average LTV at origination of the Mortgage
Loans in Pool 1 was not more than [___]% and the weighted average LTV at
origination of the Mortgage Loans in Pool 2 was not more than [___]%. The
weighted average FICO Score of the Mortgage Loans in Pool 1 is not less
than
[___] and the weighted average FICO Score of the Mortgage Loans in Pool
2 is not
less than [__]. The Mortgage Loans have the approximate pool characteristics
as
set forth in the Purchase Price and Terms Letter.
A-1-1
Annex
3
to
Acknowledgment
and Conveyance Agreement
COMPANY’S
UNDERWRITING GUIDELINES
A-1-1
EXHIBIT
A-2
(1) the
Company's Mortgage Loan identifying number;
(2) the
Mortgagor's and Co-Mortgagor’s name;
(3) the
street address of the Mortgaged Property including the city, state, county,
and
the zip code;
(4) the
lot,
block, and section numbers of the Mortgaged Property;
(5) a
code
indicating whether the loan was originated through a correspondent, retail,
or
wholesale channel;
(6) the
broker identification number;
(7) a
code
indicating whether the Mortgaged Property is a single family residence,
a 2-4
family dwelling, a PUD, a townhouse, a cooperative or a unit in a high-rise
or
low-rise condominium project;
(8) the
year
in which the Mortgaged Property was built;
(9) a
code
indicating whether the Mortgage Loan is a 3/1, 5/1 or 7/1 ARM Mortgage
Loan;
(10) with
respect to each ARM Mortgage Loan, the Index and payment and interest rate
adjustment frequencies;
(11) with
respect to each ARM Mortgage Loan, the initial Interest Rate Adjustment
Date;
(12) with
respect to each ARM Mortgage Loan, the initial payment adjustment date;
(13) the
next
Interest Rate Adjustment Date;
(14) with
respect to each ARM Mortgage Loan, the next payment adjustment date;
(15) with
respect to each ARM Mortgage Loan, the Gross Margin;
(16) with
respect to each ARM Mortgage Loan, the minimum Mortgage Interest Rate under
the
terms of the Mortgage Note;
(17) with
respect to each ARM Mortgage Loan, the maximum Mortgage Interest Rate under
the
terms of the Mortgage Note;
(18) with
respect to each ARM Mortgage Loan, the Mortgage Interest Rate adjustment
cap at
the initial Interest Rate Adjustment Date;
A-2-1
(19) with
respect to each ARM Mortgage Loan, the Mortgage Interest Rate adjustment
cap at
all subsequent Interest Rate Adjustment Dates;
(20) with
respect to each ARM Mortgage Loan, the Lifetime Rate Cap;
(21) the
rounding provisions under the terms of the Mortgage Note;
(22) the
lookback provisions (# of days) under the terms of the Mortgage Note;
(23) the
number of units for all Mortgaged Properties;
(24) the
number of bedrooms and rents by unit;
(25) the
original months to maturity or the remaining months to maturity from the
Cut-off
Date, in any case based on the original amortization schedule, and if different,
the maturity expressed in the same manner but based on the actual amortization
schedule;
(26) a
code
indicating the lien status of the Mortgage Loan;
(27) the
Loan-to-Value Ratio at origination;
(28) the
Combined Loan-to-Value Ratio at origination, if applicable;
(29) the
Appraised Value and purchase price, if applicable, of the Mortgaged Property;
(30) the
Mortgage Interest Rate at the time of origination;
(31) the
Mortgage Interest Rate as of the Cut-off Date;
(32) the
application date of the Mortgage Loan;
(33) the
loan
approval/commitment date;
(34) the
origination date of the Mortgage Loan;
(35) the
first
payment date of the Mortgage Loan;
(36) the
stated maturity date of the Mortgage Loan;
(37) the
amount of the Monthly Payment as of the Cut-off Date;
(38) the
amount of the Monthly Payment at the time of origination;
(39) the
next
due date of the Mortgage Loan;
A-2-2
(40) a
twelve
month history for the Mortgage Loan and the number of times thirty, sixty,
and
ninety days delinquent in the past twelve months;
(41) a
code
indicating the payment status of the Mortgage Loan (i.e. bankruptcy,
foreclosure, REO);
(42) a
twelve
month history for the prior Mortgage Loan and the number of times thirty,
sixty,
and ninety days delinquent in the past twelve months;
(43) the
original principal amount of the Mortgage Loan;
(44) the
original principal amount of any senior Mortgage Loans;
(45) the
actual principal balance of the Mortgage Loan as of the close of business
on the
Cut-off Date, after deduction of payments of principal actually collected
on or
before the Cut-off Date;
(46) the
scheduled principal balance of the Mortgage Loan as of the close of business
on
the Cut-off Date; after deduction of payments of principal due on or before
the
Cut-off Date, whether or not collected, if applicable;
(47) the
Mortgage Loan purpose type;
(48) the
occupancy status of the Mortgaged Property at the time of
origination;
(49) the
Mortgagor’s and Co-Mortgagor’s FICO score;
(50) a
code
indicating the mortgage insurance provider and percent of coverage, if
applicable;
(51) the
mortgage insurance certificate number; a code indicating the method of
payment
for mortgage insurance premiums and cost (Lender Paid MI), if applicable;
(52) the
loan
documentation type;
(53) the
back-end debt to income ratio;
(54) number
of
Mortgagors;
(55) Mortgagor
Social Security Number;
(56) co-Mortgagor
Social Security Number;
(57) Mortgagor
date of birth;
(58) co-Mortgagor
date of birth;
A-2-3
(59) Mortgagor
gender;
(60) co-Mortgagor
gender;
(61) Mortgagor
race;
(62) co-Mortgagor
race;
(63) combined
annual income;
(64) a
code
indicating first time buyer;
(65) a
code
indicating whether the Mortgage Loan has a prepayment penalty;
(66) a
code
indicating the prepayment penalty term and the prepayment penalty amount
of the
Mortgage Loan, if any;
(67) the
monthly Servicing Fee, if provided;
(68) the
tax
service contract provider;
(69) the
flood
insurance service contract provider;
(70) the
monthly tax and insurance payment;
(71) the
escrow balance as of the Cut-Off Date;
(72) MIN
#, if
applicable;
(73) a
code
indicating if the Mortgage Loan is classified as “High Cost” or “Covered” as set
forth in the then current Standard & Poor’s LEVELS® Glossary; and
(74) current
delinquency information in 30 day intervals.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall
set forth the following information, as of the Cut-off Date:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and
(4) the
weighted average maturity of the Mortgage Loans.
A-2-4
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
The
Mortgage Loan Documents for each Mortgage Loan shall include each of the
following items, which shall be delivered to the Custodian pursuant to
Section
2.03 of the Amended and Restated Flow Mortgage Loan Purchase, Warranties
and
Servicing Agreement to which this Exhibit is annexed (the
“Agreement”):
(b) 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. To the extent that there is no room on
the
face of the Mortgage Note for endorsements, the endorsement may be contained
on
an allonge, if state law so allows. If the Mortgage Loan was acquired by
the
Company in a merger, the endorsement must be by “National City Mortgage Co.,
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
endorsement must be by “National City Mortgage Co., formerly known as [previous
name]”;
(c) the
original of any guarantee executed in connection with the Mortgage
Note;
(d) the
original Mortgage with evidence of recording thereon, and the original
recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney,
with evidence of recording thereon;
(e) the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon;
(f) the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording, delivered in blank. If the Mortgage Loan was
acquired
by the Company in a merger, the Assignment of Mortgage must be made by
“National
City Mortgage Co., 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 “National City
Mortgage Co., formerly known as [previous name];”
(g) the
originals of all intervening assignments of mortgage with evidence of recording
thereon, including warehousing assignments, if any;
(h) the
original PMI or LPMI Policy or certificate, if private mortgage guaranty
insurance is required pursuant to the Agreement;
(i) the
original mortgagee title insurance policy; provided, however, notwithstanding
anything else in this Agreement to the contrary, that such original mortgagee
title insurance policy for a Mortgage Loan shall not be required to be
delivered
by the Company to the Custodian on the related Closing Date; provided,
further,
that any such original mortgagee title insurance policy for such related
Mortgage Loan shall be delivered by the Company to the Custodian, or such
other
designee as provided by the Purchaser, within one hundred twenty (120)
days of
request by the Purchaser;
B-1
(j) the
original of any security agreement, chattel mortgage or equivalent executed
in
connection with the Mortgage;
(k) For
each Cooperative Loan, the original or a Company certified true copy of
the
following: (i) the original Pledge Agreement entered into by the Mortgagor
with
respect to such Cooperative Loan, (ii) 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 Shares to the Purchaser, (iii) original assignment of Pledge
Agreement in blank showing a complete chain of assignment from the originator
of
the related Cooperative Loan to the Company, (iv) original Form UCC-1 and
any
continuation statements with evidence of filing thereon with respect to
such
Cooperative Shares, (v) Cooperative Shares with a Stock Power in blank
attached,
(vi) original Proprietary Lease, (vii) original Assignment of Proprietary
Lease,
in blank, and all intervening assignments thereof, (viii) original Recognition
Agreement of the interests of the mortgagee with respect to the Cooperative
Loan
by the Cooperative, and (ix) originals of any assumption, consolidation
or
modification agreements relating to any of the items specified above;
and
(l) such
other documents as the Purchaser may require.
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 60
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.
B-2
EXHIBIT
C-1
CUSTODIAL
ACCOUNT CERTIFICATION
_____________________,
200_
National
City Mortgage Co. hereby certifies that it has established the account
described
below as a Custodial Account pursuant to Section 5.04 of the Amended and
Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
dated
as of May 1, 2007.
Title
of
Account: National
City Mortgage Co., in trust for Xxxxxx Brothers Bank, FSB, purchaser of
Conventional Residential Adjustable and Fixed Rate Mortgage Loans, Group
No.
2007-FLOW.
Account
Number: _______________
Address
of office or branch
of
the
Company at
which
Account is maintained:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
National
City Mortgage Co.,
Company
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
C-1-1
EXHIBIT
C-2
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________________,
200_
To:
_____________________________________
_____________________________________
_____________________________________
(the
“Depository”)
As
Company under the Amended and Restated Flow Mortgage Loan Purchase, Warranties
and Servicing Agreement, dated as of May 1, 2007 (the “Agreement”), we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 5.04 of the Agreement, to be designated as “National City
Mortgage Co., in trust for Xxxxxx Brothers Bank, FSB, purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No. 2007-FLOW.” All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Company. You may refuse any deposit which would result in violation
of
the requirement that the account be fully insured as described below. This
letter is submitted to you in duplicate. Please execute and return one
original
to us.
National
City Mortgage Co.,
Company
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
Date:
C-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of
the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured by the Federal Deposit Insurance Corporation through the Deposit
Insurance Fund.
_____________________________________
Depository
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
Date:
X-0-0
XXXXXXX
X-0
ESCROW
ACCOUNT CERTIFICATION
__________________,
200_
National
City Mortgage Co. hereby certifies that it has established the account
described
below as an Escrow Account pursuant to Section 5.06 of the Amended and
Restated
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as of May
1, 2007.
Title
of
Account: “National
City Mortgage Co., in trust for Xxxxxx Brothers Bank, FSB, purchaser of
Conventional Residential Adjustable and Fixed Rate Mortgage Loans, Group
No.
2007-FLOW, and various Mortgagors.”
Account
Number: _______________
Address
of office or branch
of
the
Company at
which
Account is maintained:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
National
City Mortgage Co.,
Company
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
X-0-0
XXXXXXX
X-0
ESCROW
ACCOUNT LETTER AGREEMENT
___________________,
200_
To:
_____________________________________
_____________________________________
_____________________________________
(the
“Depository”)
As
Company under the Amended and Restated Flow Mortgage Loan Purchase, Warranties
and Servicing Agreement, dated as of May 1, 2007 (the “Agreement”), we hereby
authorize and request you to establish an account, as an Escrow Account
pursuant
to Section 5.06 of the Agreement, to be designated as “National City Mortgage
Co., in trust for Xxxxxx Brothers Bank, FSB, purchaser of Conventional
Residential Adjustable and Fixed Rate Mortgage Loans, Group No. 2007-FLOW,
and
various Mortgagors.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Company. You may refuse any deposit which
would
result in violation of the requirement that the account be fully insured
as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
National
City Mortgage Co.,
Company
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
Date:
D-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured by the Federal Deposit Insurance Corporation through the Deposit
Insurance Fund.
_____________________________________
Depository
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
Date:
D-2-2
EXHIBIT
E-1
FORM
OF
MONTHLY REMITTANCE ADVICE
|
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
|
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED
|
||
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED,
.00 IF NO COLLECTIONS
|
||
|
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
|
.00
IF NOT APPLICABLE
|
||
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0700000 for 7.00%
|
||
|
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0025000 for .25%
|
||
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0675000 for 6.75%
|
||
|
PIPMT
|
P&I
CONSTANT, REQUIRED
|
Number
two decimals
|
|
.00
IF PAIDOFF
|
E-1-1
EXHIBIT
E-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
%
of
MI coverage
|
NUMBER(6,5)
|
|
|
The
percent of coverage provided by the PMI company in the event
of loss on a
defaulted loan.
|
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the claim was submitted to the PMI company.
|
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the bankruptcy petition is filed with the
court.
|
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
|
|
The
amount of the claim that was filed by the servicer with the
PMI
company.
|
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that foreclosure counsel filed the first legal action
as defined by
state statute.
|
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure redemption period expires.
|
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
|
|
The
court assigned case number of the bankruptcy filed by a party
with
interest in the property.
|
E-2-1
|
MI
claim amount paid
|
NUMBER(15,2)
|
|
|
The
amount paid to the servicer by the PMI company as a result
of submitting
an MI claim.
|
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
|
Current
loan amount
|
NUMBER(10,2)
|
|
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the foreclosure sale is scheduled to be held.
|
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the dismissal or relief from stay order is entered
by the
bankruptcy court.
|
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of acceptance of an REO offer.
|
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of receipt of an REO offer.
|
|
Delinquency
value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure referral
not related to
loss mitigation activity.
|
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency
valuation
amount.
|
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the delinquency valuation amount was completed by vendor
or property
management company.
|
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent
but is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
|
Foreclosure
flag
|
VARCHAR2(2)
|
Y=Active
foreclosure
|
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved
in foreclosure
proceedings.
|
|
Corporate
expense balance
|
NUMBER(10,2)
|
|
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
E-2-2
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
|
|
Value
obtained during the foreclosure process. Usually as a result
of a BPO and
typically used to calculate the bid.
|
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that foreclosure valuation amount was completed by vendor or
property
management company.
|
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure
valuation
amount.
|
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
|
|
Number
that is assigned individually to the loan by either HUD or
VA at the time
of origination. The number is located on the Loan Guarantee
Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure sale was held.
|
|
Servicer
loan number
|
VARCHAR2(15)
|
|
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residentia
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of
certain types
of insurance (i.e.: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.).
|
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
|
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
E-2-3
|
Loss
mit flag
|
VARCHAR2(2)
|
Y=
Active loss mitigation
|
N=No
active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved
in completing
a loss mitigation alternative.
|
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the mortgagor is denied loss mitigation alternatives
or the date
that the loss mitigation alternative is completed resulting
in a current
or liquidated loan.
|
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss
mit approval
date.
|
|
Loss
mit value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
|
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the loss mitigation valuation amount was completed by
vendor or
property management company.
|
|
MI
certificate number
|
VARCHAR2(15)
|
|
|
A
number that is assigned individually to the loan by the PMI
company at the
time of origination. Similar to the VA LGC/FHA Case Number
in purpose.
|
|
LPMI
Cost
|
NUMBER(7,7)
|
|
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone
is occupying
the property. Typically a result of a routine property
inspection.
|
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the most recent occupancy status was determined.
Typically the
date of the most recent property inspection.
|
|
Original
loan amount
|
NUMBER(10,2)
|
|
|
Amount
of the contractual obligations (i.e.: note and mortgage/deed
of
trust).
|
E-2-4
|
Original
value amount
|
NUMBER(10,2)
|
|
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
|
Origination
date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the contractual obligations (i.e.: note and mortgage/deed
of trust)
of the mortgagor was executed.
|
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
|
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the
servicer by
vendor or property management company.
|
|
Property
type
|
VARCHAR2(2)
3=Condo
6=Prefabricated
7=Mobile
home
A=Church
O=Co-op
CT=Condotel
|
1=Single
family
4=Multifamily
B=Commercial
U=Unknown
P=PUD
M=Manufactured
housing
MU=Mixed
use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4
unit,
etc.
|
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
002=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
|
REO
repaired value
|
NUMBER(10,2)
|
|
|
The
projected value of the property that is adjusted from the "as
is" value
assuming necessary repairs have been made to the property as
determined by
the vendor/property management
company.
|
E-2-5
|
REO
list price adjustment amount
|
NUMBER(15,2)
|
|
|
The
most recent listing/pricing amount as updated by the servicer
for REO
properties.
|
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
|
|
The
most recent date that the servicer advised the agent to make
an adjustment
to the REO listing price.
|
|
REO
value (as is)
|
NUMBER(10,2)
|
|
|
The
value of the property without making any repairs as determined
by the
vendor/property management company.
|
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the sale of the REO property closed
escrow.
|
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now
Real Estate
Owned.
|
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
|
|
The
initial/first date that the property was listed with an agent
as an
REO.
|
|
REO
original list price
|
NUMBER(15,2)
|
|
|
The
initial/first price that was used to list the property with
an agent as an
REO.
|
|
REO
net sales proceeds
|
NUMBER(10,2)
|
|
|
The
actual REO sales price less closing costs paid. The net sales
proceeds are
identified within the HUD1 settlement statement.
|
|
REO
sales price
|
NUMBER(10,2)
|
|
|
Actual
sales price agreed upon by both the purchaser and servicer
as documented
on the HUD1 settlement statement.
|
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
|
REO
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the vendor or management company completed the valuation
of the
property resulting in the REO value (as is).
|
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value
(as
is).
|
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
E-2-6
|
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
|
|
The
servicer defined date upon which the servicer considers that
the plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that both the mortgagor and servicer agree to the terms
of a
forbearance or repayment plan.
|
|
SBO
loan number
|
NUMBER(9)
|
|
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
|
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only).
|
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title approval was received as set forth
in the HUD
title approval letter.
|
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title package was submitted to either
HUD or
VA.
|
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that funds were received by the servicer from the
VA for the
expense claim submitted by the servicer.
|
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
|
VA
first funds received amount
|
NUMBER(15,2)
|
|
|
The
amount of funds received by the servicer from VA as a result
of the
specified bid.
|
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the funds from the specified bid were received by
the servicer
from the VA.
|
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Notice of Election to Convey was submitted to
the
VA.
|
|
Zip
Code
|
VARCHAR2(5)
|
|
|
U.S.
postal zip code that corresponds to property
location.
|
E-2-7
|
FNMA
Delinquency status code
|
VARCHAR2(3)
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
09=Forbearance
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer
that reflects
the current defaulted status of a loan (i.e.: 65, 67, 43 or
44).
|
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer
that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
|
Suspense
balance
|
NUMBER(10,2)
|
|
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow, etc.
|
|
Restricted
escrow balance
|
NUMBER(10,2)
|
|
|
Money
held in escrow by the mortgage company through completion of
repairs to
property.
|
|
Investor
number
|
NUMBER
(10,2)
|
|
|
Unique
number assigned to a group of loans in the servicing system.
|
E-2-8
EXHIBIT
F
COMPANY’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice]
President
of National City Mortgage Co., a corporation organized under the laws of
the
state of [_______], (the “Company”) and further as follows:
(1) Attached
hereto as Exhibit 1 is a true, correct and complete copy of the certificate
of
incorporation of the Company which is in full force and effect on the date
hereof and which has been in effect without amendment, waiver, rescission
or
modification.
(2) Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of the
Company which are in effect on the date hereof and which have been in effect
without amendment, waiver, rescission or modification.
(3) Attached
hereto as Exhibit 3 is an original certificate of good standing of the
Company
issued within ten days of the date hereof, and no event has occurred since
the
date thereof which would impair such standing.
(4) Attached
hereto as Exhibit 4 is a true, correct and complete copy of the corporate
resolutions of the Board of Directors of the Company authorizing the Company
to
execute and deliver each of the Amended and Restated Flow Mortgage Loan
Purchase, Warranties and Servicing Agreement, Group No. 2007-FLOW dated
May 1,
2007 by and between the Company and Xxxxxx Brothers Bank, FSB (the “Purchaser”)
(the “Purchase Agreement”) and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original signature, and such resolutions are
in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification.
(5) 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 Purchase Agreement, the
sale of
the mortgage loans or the consummation of the transactions contemplated
by the
agreements; or (ii) any required consent, approval, authorization or order
has
been obtained by the Company.
(6) Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of the Purchase Agreement conflicts or will conflict with or results
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 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.
(7) There
is
no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Company which, in my judgment, 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 Purchase Agreement or the mortgage loans or of any action
taken
or to be taken in connection with the transactions contemplated hereby,
or which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Purchase Agreement.
F-1
(8) Each
person listed on Exhibit 5 attached hereto who, as an officer or representative
of the Company, signed (a) the Purchase Agreement and (b) any other document
delivered prior hereto or on the date hereof in connection with any purchase
described in the agreements set forth above was, at the respective times
of such
signing and delivery, and is now, a duly elected or appointed, qualified
and
acting officer or representative of the Company, who holds the office set
forth
opposite his or her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
(9) The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement.
(10) The
Mortgage Loans are not subject to any security interest, claim, pledge,
hypothecation or lien.
F-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the
Company.
|
Dated:
[Seal]
|
By:
Name:
Title:
[Vice] President
|
I,
________________________, an [Assistant] Secretary of National City Mortgage
Co., hereby certify that ____________ is the duly elected, qualified and
acting
[Vice] President of the Company and that the signature appearing above
is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
[Seal]
|
By:
Name:
Title:
[Vice] President
|
F-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
Name
|
Title
|
Signature
|
|
—
|
||
|
—
|
||
|
—
|
||
|
—
|
||
|
—
|
F-4
EXHIBIT
G
FORM
OF
OPINION OF COUNSEL TO THE COMPANY
(date)
Xxxxxx
Brothers Bank, FSB
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to National
City
Mortgage Co. (the “Company”), with respect to certain matters in connection with
the sale by the Company of the Mortgage Loans pursuant to that certain
Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement
by
and between the Company and Xxxxxx Brothers Bank, FSB (the “Purchaser”), Group
No. 2007-FLOW dated as of May 1, 2007 (the “Purchase Agreement”) which sale is
in the form of whole loans, serviced pursuant thereto. Capitalized terms
not
otherwise defined herein have the meanings set forth in the Purchase Agreement.
[We]
[I]
have examined the following documents:
|
1.
|
the
Purchase Agreement;
|
|
2.
|
the
form of Assignment of Mortgage;
|
|
3.
|
the
form of endorsement of the Mortgage Notes;
and
|
|
4.
|
such
other documents, records and papers as we have deemed necessary
and
relevant as a basis for this
opinion.
|
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied
upon the
representations and warranties of the Company contained in the Purchase
Agreement. [We] [I] have assumed the authenticity of all documents submitted
to
[us] [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 [our] [my] opinion that:
|
1.
|
The
Company is a corporation duly formed, validly existing and in
good
standing under the laws of the state of [_______] and is qualified
to
transact business in, and is in good standing under, the laws
of the state
of [________].
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Purchase Agreement and all requisite power, authority and legal
right to
execute and deliver the Purchase Agreement, and to perform and
observe the
terms and conditions of such
Agreement.
|
G-1
|
3.
|
The
Purchase Agreement has been duly authorized, executed and delivered
by the
Company and is a legal, valid and binding agreement enforceable
in
accordance with its respective terms against the Company, subject
to
bankruptcy laws and other similar laws of general application
affecting
rights of creditors 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.
|
|
4.
|
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 Purchase Agreement and by original
signature in order to execute the endorsements to the Mortgage
Notes and
the Assignments of Mortgages, and the original signature of the
officer at
the Company executing the endorsements to the Mortgage Notes
and the
Assignments of Mortgages represents the legal and valid signature
of said
officer of the Company.
|
|
5.
|
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
Purchase Agreement or the sale of the Mortgage Loans or the consummation
of the transactions contemplated by the Purchase Agreement; or
(ii) any
required consent, approval, authorization or order has been obtained
by
the Company.
|
|
6.
|
Neither
the consummation of the transactions contemplated by, nor the
fulfillment
of the terms of, the Purchase Agreement conflicts or will conflict
with or
results 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.
|
|
7.
|
There
is no action, suit, proceeding or investigation pending or, to
the best of
[our] [my] knowledge, threatened against the Company which, in
[our] [my]
judgment, 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 Purchase
Agreement, or the Mortgage Loans 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 Purchase
Agreement.
|
G-2
|
8.
|
The
sale of each Mortgage Note and Mortgage as and in the manner
contemplated
by the Purchase Agreement is sufficient to fully transfer to
the Purchaser
all right, title and interest of the Company thereto as noteholder
and
mortgagee.
|
|
9.
|
The
Mortgages have been duly assigned and the Mortgage Notes have
been duly
endorsed as provided in the Purchase Agreement. The Assignments
of
Mortgage are in recordable form, except for the insertion of
the name of
the assignee, and upon the name of the assignee being inserted,
are
acceptable for recording under the laws of the state where each
related
Mortgaged Property is located. The endorsement of the Mortgage
Notes, the
delivery to the Purchaser, or its designee, of the Assignments
of
Mortgage, and the delivery of the original endorsed Mortgage
Notes to the
Purchaser, or its designee, are sufficient to permit the Purchaser
to
avail itself of all protection available under applicable law
against the
claims of any present or future creditors of the Company, and
are
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.
Very
truly yours,
[Name]
[Assistant]
General Counsel
G-3
EXHIBIT
H-1
SECURITY
RELEASE CERTIFICATION
___________________,
200_
Federal
Home Loan Bank of
______(the
“Association”)
Attention:
|
0
|
Notice
of Sale and Release of Collateral
|
Dear
Sirs:
This
letter serves as notice that National City Mortgage Co., a corporation
formed
pursuant to the laws of the state of [_______] (the “Company”) has committed to
sell to Xxxxxx Brothers Bank, FSB under a Amended and Restated Flow Mortgage
Loan Purchase, Warranties and Servicing Agreement Group No. 2007-FLOW,
dated as
of May 1, 2007, certain mortgage loans originated by the Company. The Company
warrants that the mortgage loans to be sold to Xxxxxx Brothers Bank, FSB
on this
date pursuant to the Acknowledgment and Conveyance Agreement dated as of
[________] (the “Related Loans”) are in addition to and beyond any collateral
required to secure advances made by the Association to the Company.
The
Company acknowledges that the Related Loans shall not be used as additional
or
substitute collateral for advances made by the Association. Xxxxxx Brothers
Bank, FSB understands that the balance of the Company’s mortgage loan portfolio
may be used as collateral or additional collateral for advances made by
the
Association, and confirms that it has no interest therein.
Execution
of this letter by the Association shall constitute a full and complete
release
of any security interest, claim, or lien which the Association may have
against
the Related Loans.
H-1-1
Very
truly yours,
National
City Mortgage Co.
By:
Name:
Title:
Date:
Acknowledged
and approved:
FEDERAL
HOME LOAN BANK OF
By:
Name:
Title:
Date:
X-0-0
XXXXXXX
X-0
SECURITY
RELEASE CERTIFICATION
I.
Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right,
title
and interest it may have in all Mortgage Loans to be purchased by Xxxxxx
Brothers Bank, FSB from the Company named below pursuant to that certain
Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement,
Group No. 2007-FLOW, dated as of Apri1 1, 2007 and certifies that all notes,
mortgages, assignments and other documents in its possession relating to
such
Mortgage Loans have been delivered and released to the Company named below
or
its designees, as of the date and time of the sale of such Mortgage Loans
to
Xxxxxx Brothers Bank, FSB pursuant to the Acknowledgment and Conveyance
Agreement dated as of __________.
Name
and
Address of Financial Institution
(name)
(Address)
By:
H-2-1
II.
Certification
of Release
The
Company named below hereby certifies to Xxxxxx Brothers Bank, FSB, that,
as of
the date and time of the sale of the above-mentioned Mortgage Loans to
Xxxxxx
Brothers Bank, FSB, the security interests in the Mortgage Loans released
by the
above-named financial institution comprise all security interests relating
to or
affecting any and all such Mortgage Loans. The Company warrants that, as
of such
time, there are and will be no other security interests affecting any or
all of
such Mortgage Loans.
National
City Mortgage Co.
By:
Name:
Date:
H-2-2
EXHIBIT
I
REGULATION
AB COMPLIANCE
Capitalized
terms used herein but not otherwise defined shall have the meaning set
forth in
the Agreement. The following terms are defined as follows (except as otherwise
agreed in writing by the parties):
Company
Information:
As
defined in Section 7(a).
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
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-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed
to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company. For the avoidance of doubt,
a
“Qualified Correspondent” includes a “table broker” or mortgage lender that
originates loans underwritten and funded by the Company or an Affiliate
of the
Company.
Servicer:
As
defined in Section 3(c).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete material 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.
I-1
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;
provided, however, that the term “Subservicer” shall not include any master
servicer, or any special servicer engaged at the request of a Depositor,
Purchaser or investor in a Securitization Transaction, nor any “back-up
servicer” or trustee performing servicing functions on behalf of a
Securitization Transaction, in each case so long as such party does not
act on
behalf of the Company or any Subservicer in such Securitization
Transaction.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage
Loans
acquired by the Company and shall not include a mortgage broker that does
not
fund loans.
ARTICLE
1
COMPLIANCE
WITH REGULATION AB
Section
1
Intent
of the Parties.
The
Purchaser and the Company acknowledge and agree that the purpose of Article
1 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations
of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act,
the NC
Servicer acknowledges that investors in privately offered securities may
require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in the Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other
than
in good faith, or for purposes other than compliance with the provisions
of
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable
to
that required under the Securities Act) that are applicable to any
Securitization Transaction. 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 negotiate in good faith with the Purchaser or any Depositor,
upon a
request made in good faith, regarding the Company’s 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 as set
forth
herein 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.
I-2
Section
2
Additional Representations and Warranties of the Company.
(a) The
Company shall be deemed to represent to the Purchaser and to any Depositor,
as
of the date on which information is first provided to the Purchaser or
any
Depositor under Section 3 that, except as disclosed in writing to the Purchaser
or such Depositor prior to such date and unless otherwise disclosed in
such
information provided under Section 3: (i)
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; (ii)
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; (iii) 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; (iv) 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; (v) 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;
(vi) there are no material
legal or governmental proceedings pending (or known to be contemplated
by
Government authorities) against the Company and, to the knowledge of the
Company
after reasonable due diligence, any Subservicer or any Third-Party
Originator;
and (vii) 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 or any Depositor on any date following
the
date
on which information is first provided to the Purchaser or any Depositor
under
Section 3,
the Company shall, as soon as practicable but in no event later than ten
(10)
Business Days following such request, confirm in writing the accuracy of
the
representations and warranties set forth in paragraph (a) of this Section
or, if
any such representation and warranty is not accurate as of the date of
such
request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
Section
3
Information
to Be Provided by the Company.
In
connection with any Securitization Transaction the Company shall (i) as
promptly
as practicable but
in no event later than ten (10) 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, or in a mutually agreed upon
electronic format, and in form and substance reasonably satisfactory to
the
Purchaser and such Depositor, the information and materials specified in
paragraphs (a), (b), (c) and (f) of this Section, and (ii) as promptly
as
practicable following notice to or discovery by the Company, provide to
the
Purchaser and any Depositor (in writing, or in a mutually agreed upon electronic
format, and in form and substance reasonably satisfactory to the Purchaser
and
such Depositor) the information specified in paragraph (d) of this
Section.
I-3
(a) If
so
requested by the Purchaser or any Depositor, the Company shall provide
(or cause
each Third-Party Originator or Subservicer, as applicable, to provide)
such
information regarding (i) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105,
1110,
1117 and 1119 of Regulation AB. Such information shall include, at a minimum:
(A) the
originator’s form of organization;
(B) 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 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 proceedings pending (or known to be
contemplated by governmental authorities) against the Company and, to the
knowledge of the Company after reasonable due diligence, each Third-Party
Originator and each Subservicer;
(D) as
promptly as practicable following notice to the Company, 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 and noticed to the Company
by the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party; and
(E)
such
other information as is mutually agreed upon by the Purchaser and the Company,
each Third-Party Originator and each Subservicer, as applicable.
(b) 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 (i) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) 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 as mutually agreed upon by the Purchaser
or the Depositor and the Company, as applicable.
I-4
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an
omission
to include therein information required to be provided pursuant to such
paragraph), the Company shall provide corrected Static Pool Information
to the
Purchaser or any Depositor, as applicable, in the same format in which
Static
Pool Information was previously provided to such party by the
Company.
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
Purchaser or Depositor, as applicable (to the extent of any additional
incremental expense associated with delivery pursuant to this Agreement),
such
agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Purchaser or Depositor, as applicable, pertaining to
Static
Pool Information relating to prior securitized pools for securitizations
closed
on or after January 1, 2006 or, in the case of Static Pool Information
with
respect to the 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, and shall
also
be addressed to and for the benefit of the Company and such Third-Party
Originator. 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.
(c) 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
cause
each Subservicer to so provide such information (each of the Company and
each
Subservicer, for purposes of this paragraph, a “Servicer”), as is requested for
the purpose of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
I-5
(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 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 is mutually agreed upon by the Purchaser and the Company
and each Subservicer, as applicable;
(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 the effect on one or more aspects of servicing resulting
from
such financial condition would have a material impact on pool performance
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;
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(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.
(d) 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 upon discovery (or shall cause
each
Subservicer and Third-Party Originator to so notify upon discovery) (i)
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, as applicable, 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 clause (D) of paragraph (a) of this Section (and any
other
parties identified in writing by the requesting party) with respect to
such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
(e) 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
ten
Business Days prior to the effective date of such succession or appointment,
(x)
written notice to the Purchaser and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to the related Securitization
Transaction.
(f) 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
regarding
the performance or servicing of the Mortgage Loans as is reasonably required
to
facilitate preparation of distribution reports in accordance with Item
1121 of
Regulation AB. Such information shall be provided concurrently with the
monthly
reports otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
I-7
(g) Notwithstanding
any provision of this Amendment Reg AB to the contrary, with respect to
any
information required to be provided by a Servicer pursuant to this Section
3(c)
as of the closing date of the related Securitization Transaction, in the
event
the closing date of the related Securitization Transaction is modified
after the
date on which such information required by this Section 3(c) is provided,
the
Company shall be given, prior to the modified settlement date of the related
Securitization Transaction, notice and an opportunity to review and update
the
information previously provided by such Servicer.
Section
4
Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2008, 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 (i) a review of the Company’s activities as servicer
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
(ii) 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
5
Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 1 of each calendar year, commencing in 2008, 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
Exhibit B
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 6(b) to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Purchaser and any Depositor
an
assessment of compliance and accountants’ attestation as and when provided in
paragraphs (a) and (b) of this Section; and
I-8
(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 A; provided that such certification delivered by the Company may
not be
filed as an exhibit to, or included in, any offering document or registration
statement unless required pursuant to Regulation AB or otherwise due to
applicable law or interpretive guidance provided by the commission or its
staff.
The
Company acknowledges that the parties identified in clause (a)(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.
(b) Each
assessment of compliance provided by a Subservicer pursuant to
Section
5(a)(i) shall address each of the Servicing Criteria specified Exhibit
B hereto.
An assessment of compliance provided by a Subcontractor pursuant to Section
5(a)(iii) need not address any elements of the Servicing Criteria other
than
those specified by the Company pursuant to Section 6.
Section
6
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 as servicer under this Agreement
or any Reconstitution Agreement unless the Company complies with the provisions
of paragraph (a) of this Section. 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 as servicer under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (b) of this Section.
(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
and
with Sections 2, 3(c) and (e), 4, 5, and 7 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 3(d) 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 4, any assessment of compliance
and attestation required to be delivered by such Subservicer under Section
5 and
any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 5 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.
I-9
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 5 and 7 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 5, in each
case as
and when required to be delivered.
Section
7
Indemnification;
Remedies.
(a) The
Company shall indemnify the Purchaser, each affiliate of the Purchaser
participating in a Securitization Transaction, 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 and officers
of
each of the foregoing; and shall hold each of them (each, an “Indemnified
Party”) 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 this Article 1 by or on behalf of the Company, or provided
under
this Article 1 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
provided, 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 this Article 1, including
any failure by the Company to identify pursuant to Section 6(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
I-10
(iii) any
breach by the Company of a representation or warranty set forth in Section
2(a)
or in a writing furnished pursuant to Section 2(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
2(b)
to the extent made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this
Section,
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.
(b) Termination.
(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 this Article 1, or
any
breach by the Company of a representation or warranty set forth in Section
02(a)
or in a writing furnished pursuant to Section 2(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
2(b)
to the extent made as of a date subsequent to such closing date, shall,
except
as provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Company under this Agreement and any applicable Reconstitution Agreement,
if
such failure or breach is not cured within three (3) Business Days after
the
Company receives written notice of such failure or breach (which may be
provided
by e-mail), 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,
provided that the effect of such termination shall be subject to the terms
and
conditions of the Agreement and/or any applicable Reconstitution Agreement,
with
payment provided for in paragraph (iv) below; provided,
for the purpose of clarification,
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.
(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 4 or 5, including (except as provided below) any failure
by the
Company to identify pursuant to Section 6(b) any Subcontractor “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Company
under
this Agreement and any applicable Reconstitution Agreement, if such failure
or
breach is not cured within three (3) Business Days after the Company receives
written notice of such failure or breach (which may be provided by e-mail),
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 to the contrary) of any compensation
to the Company; provided,
for the purpose of clarification,
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.
I-11
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights
and
obligations of the Company pursuant to this subparagraph (b)(ii) if a failure
of
the Company to identify a Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
(iii) The
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.
(iv) In
the
event the Company is terminated pursuant to this Section 7, the Purchaser
hereby
agrees to pay the Company any accrued and outstanding servicing fees owing
to
the Company to the date of such termination under this Agreement and the
applicable Reconstitution Agreement, as applicable, and to cause the successor
servicer to agree to reimburse the Company for any Servicing Advances that
the
Company actually made as servicer pursuant to this Agreement and the applicable
Reconstitution Agreement which the successor recovers from the related
Mortgagor.
(c) Notification
and Cooperation.
Promptly after receipt by an Indemnified Party under this Subsection (c)
of
notice of the commencement of any action, such Indemnified Party shall,
if a
claim in respect thereof is to be made against the Company or Servicer,
as
applicable (each, as applicable, an “Indemnifying Party” (or if a claim for
contribution is to be made against another party) under this Subsection
7,
notify the Indemnifying Party (or other contributing party) in writing
of the
commencement thereof; but the omission so to notify the Indemnifying Party
(or
other contributing party) shall not relieve it from any liability it may
have to
any Indemnified Party (or to the party requesting contribution) otherwise
than
under this Subsection 7, except if, and then only to the extent that, such
failure materially prejudices the Indemnifying Party or its ability to
defend
such claim. In case any such action is brought against any Indemnified
Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party shall be entitled to participate therein and, to the extent that,
by
written notice delivered to each Indemnified Party promptly after receiving
the
aforesaid notice from an Indemnified Party, the Indemnifying Party elects
to
assume the defense thereof, it may control the defense thereof (jointly
with any
other Indemnifying Party similarly notified) with counsel satisfactory
to each
Indemnified Party; provided, however, that if the defendants in any such
action
include both an Indemnified Party and the Indemnifying Party and the Indemnified
Party or parties shall reasonably have concluded that there may be legal
defenses available to it or them and/or other indemnified parties that
are
different from or additional to those available to the Indemnifying Party,
the
Indemnified Party or parties shall have the right to select separate counsel
to
assert such legal defenses and to otherwise participate in the defense
of such
action on behalf of such Indemnified Party or parties. Upon receipt of
notice
from the Indemnifying Party to such Indemnified Party of its election so
to
assume the defense of such action and approval by the Indemnified Party
of such
counsel, the Indemnifying Party shall not be liable to such Indemnified
Party
under this paragraph for any legal or other expenses subsequently incurred
by
such Indemnified Party in connection with the defense thereof, unless (i)
such
Indemnified Party shall have employed separate counsel (plus any local
counsel)
in connection with the assertion of legal defenses in accordance with the
proviso to the immediately preceding sentence, (ii) the Indemnifying Party
shall
not have employed counsel reasonably satisfactory to such Indemnified Party
to
represent such Indemnified Party within a reasonable time after notice
of
commencement of the action or (iii) the Indemnifying Party shall have authorized
the employment of counsel for such Indemnified Party at the expense of
the
Indemnifying Party, provided such legal and other expenses are reasonable.
No
party shall be liable for contribution with respect to any action or claim
settled without its consent, which shall not be unreasonably withheld.
In no
event shall any Indemnifying Party be liable for the fees and expenses
of more
than one counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of
the same general allegations or circumstances.
I-12
(d) Exclusive
Remedy.
Except
for remedies under the Agreement and remedies that cannot be waived as
a matter
of law and injunctive relief, the rights under this Section 7 shall be
the
exclusive remedy for breaches of this Section 7 (including any covenant,
obligation, representation or warranty contained herein or therein), provided
that the Purchaser shall maintain its right to seek adequate remedy in
connection with the prevention of enforcement or other action by the Commission.
(e) Limitations. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Company
be
obligated under this Section 7 to indemnify an Indemnified Party otherwise
entitled to indemnity hereunder in respect of any indemnifiable claims
or losses
that result from the willful misconduct, bad faith or negligent acts or
omissions of the Indemnified Party.
Section
8
Responsible
Officers.
I-13
Any
reference herein to the Company’s knowledge, discovery or awareness, or notice
or identification to the Company, or a request to the Company, shall be
in each
case be deemed to refer solely to the knowledge or awareness of, or notice
or
identification to, or request of, a Responsible Officer of the
Company.
Section
9
Miscellaneous
(a) The
Company acknowledges that a Subservicer or Subcontractor that performs
services
with respect to mortgage loans involved in a Securitization Transaction
in
addition to the Mortgage Loans may be determined by a Depositor to be a
Participating Entity on the basis of the aggregate balance of such mortgage
loans, without regard to whether such Subservicer or Subcontractor would
be a
Participating Entity with respect to the Mortgage Loans viewed in isolation.
The
Company shall (A) respond as promptly as practicable to any good faith
request
by the Purchaser or any Depositor for information regarding each Subservicer
and
each Subcontractor and (B) cause each Subservicer and each Subcontractor
with
respect to which the Purchaser or any Depositor requests delivery of an
assessment of compliance and accountants’ attestation to deliver such within the
time required under Section 5.
I-14
EXHIBIT
A
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ],
200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME
OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master
Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the applicable 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 Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were provided, not misleading with respect to the
period
of time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed
in the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to
this
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by each Subservicer and each Subcontractor
“participating in the servicing function” 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.
I-A-1
Date: _________________________
By:
_____________________________
Name:
Title:
I-A-2
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
Not
applicable
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports
|
See
below for each of clauses (A) through (D)
|
|
1122(d)(3)(i)(A)
|
(A)
are prepared in accordance with timeframes and other terms set
forth in
the transaction agreements;
|
X
|
I-B-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(i)(B)
|
(B)
provide information calculated in accordance with the terms specified
in
the transaction agreements;
|
X
|
|
1122(d)(3)(i)(C)
|
(C)
are filed with the Commission as required by its rules and regulations;
and
|
|
|
1122(d)(3)(i)(D)
|
(D)
agree with investors’ or the trustee’s records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
I-B-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
Not
applicable
|
|
|
|
|
I-B-3
EXHIBIT
C
Assignment
and Assumption Agreement
C-1
EXHIBIT
D
EXHIBIT
J
Schedule
of Serviced Mortgage Loans
[To
be
retained in a separate closing binder entitled “LMT 2007-5 Mortgage Loan
Schedules” at the Washington, DC offices of XxXxx Xxxxxx LLP]
D-1
EXHIBIT
E
EXHIBIT
K
TRANSACTION
PARTIES
Depositor: Structured
Asset Securities Corporation
Trustee:
Xxxxx
Fargo Bank, N.A.
Securities
Administrator: N/A
Master
Servicer: Aurora
Loan Services LLC
Credit
Risk Manager: N/A
PMI
Insurer(s): N/A
Interest
Rate Swap Counterparty: N/A
Interest
Rate Cap Counterparty: Xxxxxx
Brothers Special Financing Inc.
Servicer(s):
Aurora Loan Services LLC, IndyMac Bank, F.S.B., Countrywide Home Loans
Servicing, LP, GreenPoint Mortgage Funding, Inc., National City Mortgage Co.,
PHH Mortgage Corporation and Colonial Savings, F.A.
Primary
Originator(s): Sovereign Bank, FSB, National City Mortgage Co., IndyMac Bank,
F.S.B. and Xxxxxx Brothers Bank, FSB.
Custodian(s):
Deutsche Bank National Trust Company, LaSalle Bank National Association, Xxxxx
Fargo Bank, N.A. and U.S. Bank National Association
Sponsor
and Seller: Xxxxxx Brothers Holdings, Inc.
E-1
EXHIBIT
F
EXHIBIT
A
[Date]
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Reconstituted Servicing Agreement dated as of May 1, 2007 (the
“Agreement”), by and between Xxxxxx Brothers Holdings Inc. and National
City Mortgage Co. (the “Servicer” or “Company”), and acknowledged by
Aurora Loan Services LLC (the “Master Servicer”) and Xxxxx Fargo Bank,
N.A., as Trustee (the “Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the LMT 2007-5 Trust Fund (the “Trust Fund”), Structured Asset Securities
Corporation (the “Depositor), the Trustee [,and] the Master Servicer [and any
other person responsible for signing a certification required by Rules 13a-14(d)
and 15d-14(d) under the Exchange Act], and their officers, with the knowledge
and intent that they will rely upon this certification, that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the applicable 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 Company during 200[ ] that were delivered
by the Company to the Depositor, the Trust Fund, the Master Servicer and the
Trustee pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were provided, not misleading with respect to the period
of time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the Depositor,
the Trust Fund, the Master Servicer and the Trustee;
F-1
(4) I
am responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by each Subservicer and each Subcontractor
“participating in the servicing function” pursuant to the Agreement, have been
provided to the Depositor, the Trust Fund, the Master Servicer and the Trustee.
Any material instances of noncompliance described in such reports have been
disclosed to the Depositor, the Trust Fund, the Master Servicer and the Trustee.
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________
By:________________________________
Name:
Title:
F-2
EXHIBIT
G
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
Not
Applicable
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
G-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
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 Regulation AB
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Regulation
AB Servicer’s investor records, or such other number of days specified in
the transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Regulation AB Servicer’s
obligor records maintained no more than two business days after receipt,
or such other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Regulation AB Servicer’s records regarding the mortgage loans agree with
the Regulation AB Servicer’s records with respect to an obligor’s unpaid
principal balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
G-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
Not
Applicable
|
G-3
