RECONSTITUTED SERVICING AGREEMENT
EXECUTION
RECONSTITUTED
SERVICING AGREEMENT
This
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st
day of August, 2007, by and between XXXXXX BROTHERS HOLDINGS, INC., a Delaware
corporation (“LBH” or “Seller”), and XXXXX FARGO BANK, N.A., a national banking
association (the “Servicer”), and acknowledged by AURORA LOAN SERVICES LLC, a
Delaware limited liability company (“Aurora” or “Master Servicer”) and U.S. BANK
NATIONAL ASSOCIATION, a national banking association as Trustee under the Trust
Agreement defined below (the “Trustee”), recites and provides as
follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (“LBB”) acquired certain conventional, fully
amortizing and balloon, residential, fixed and adjustable rate, first lien
mortgage loans from the Servicer, which mortgage loans were either originated
or
acquired by the Servicer;
WHEREAS,
the Seller has conveyed certain Mortgage Loans (the “Mortgage Loans”) acquired
from Xxxxxx Brothers Bank, FSB to Structured Asset Securities Corporation,
a
Delaware special purpose corporation (“SASCO”), which in turn has conveyed the
Mortgage Loans to the Trustee, pursuant to a trust agreement, dated as of August
1, 2007 (the “Trust Agreement”), attached as Exhibit B-1 hereto, among the
Trustee, the Master Servicer, Xxxxx Fargo Bank, N.A., as securities
administrator (in such capacity, the “Securities Administrator”), Xxxxxxx Fixed
Income Services Inc., as credit risk manager (the “Credit Risk Manager”), and
SASCO, as depositor (the “Depositor”);
WHEREAS,
the Mortgage Loans are currently serviced by the Servicer pursuant to the Master
Seller’s Warranties and Servicing Agreement by and between LBB and the Servicer
dated as of May 1, 2006, as amended by (i) Amendment No. 1 dated as of August
1,
2006, (ii) Amendment No. 2 dated as of July 1, 2007 and (iii) the Assignment
and
Conveyance Agreements (07-M06)
dated May 30, 2007,
(07-M08) dated June 28, 2007 and (07-M10) dated July 30, 2007 (collectively,
the
“SWSA”), annexed hereto as Exhibit C;
WHEREAS,
the Seller, the Servicer, the Master Servicer, the Securities Administrator
and
the Trustee have agreed to service the Mortgage Loans pursuant to the SWSA,
as
reconstituted by this Agreement;
WHEREAS,
pursuant to an Assignment and Assumption Agreement, dated as of August 1, 2007
(the “Assignment and Assumption Agreement”), and annexed hereto as Exhibit B-2,
LBB has assigned all of its rights, title and interest in the Mortgage Loans
as
well as all of its rights and obligations as purchaser under the SWSA to LBH,
and LBH has accepted such assignment;
WHEREAS,
the Seller desires that the Servicer continue to service the Mortgage Loans,
and
the Servicer has agreed to do so, pursuant to the SWSA, as reconstituted by
this
Agreement, 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 Mortgage Loans, but only to the extent provided herein and that this
Agreement shall govern the Mortgage Loans for so long as such Mortgage Loans
remain subject to the provisions of the Trust Agreement;
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Mortgage Loans on behalf of
the
Trustee, and shall have the right, under certain circumstances, to terminate
the
rights and obligations of the Servicer under this Agreement;
WHEREAS,
multiple classes of certificates (the “Certificates”), including the Class P
Certificates and the Class X Certificates, will be issued on the Closing Date
pursuant to the Trust Agreement and Xxxxxx Brothers Inc. or a nominee thereof
is
expected to be the initial registered holder of the Class P and Class X
Certificates;
WHEREAS,
subsequent to the Closing Date (as defined in the Trust Agreement), Xxxxxx
Brothers Inc. (or a nominee thereof) may convey all of its rights, title and
interest in and to the Class P and Class X Certificates and all payments and
other proceeds received thereunder to an owner trust or other special purpose
entity in which it will initially hold the sole equity interest, which trust
or
special purpose entity will issue net interest margin securities (“NIM
Securities”) through an indenture trust, such NIM Securities secured, in part,
by the payments on such Certificates (the “NIMS Transaction”);
WHEREAS,
one or more insurers (collectively, the “NIMS Insurer”) may each issue insurance
policies guaranteeing certain payments under the NIM Securities to be issued
pursuant to the indenture in the NIMS Transaction;
WHEREAS,
in the event there may be two or more individual insurers, it is intended that
the rights extended to the NIMS Insurer pursuant to this Agreement be allocated
among two or more individual insurers that issue insurance policies in
connection with the NIMS Transaction through a NIMS Insurance Agreement by
and
among such insurers and the parties hereto; and
WHEREAS,
the Seller and the Servicer intend that each of the NIMS Insurer, the Master
Servicer and the Trustee be an intended third party beneficiary of this
Agreement, provided
that the
rights extended to the NIMS Insurer pursuant to this Agreement shall exist
only
so long as the NIM Securities remain outstanding or the NIMS Insurer is owed
amounts in respect of its guaranty of certain payments on such NIM
Securities.
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
2. Custodianship.
The
parties hereto acknowledge that Xxxxx
Fargo Bank, N.A. will
act
as custodian (the “Custodian”) of the Custodial Mortgage Files for the Trustee
pursuant to a Custodial Agreement dated as of August
1,
2007,
between
the Custodian and the Trustee and acknowledged by the Master Servicer, the
Seller, the Servicer and the Depositor.
3. Servicing.
The
Servicer agrees, with respect to the Mortgage Loans, to perform and observe
the
duties, responsibilities and obligations that are to be performed and observed
under the provisions of the 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.
The
Servicer additionally agrees that the Servicer will fully furnish, in accordance
with the Fair Credit Reporting Act of 1970, as amended (the “Fair Credit
Reporting Act”) and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories) on a monthly basis.
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 September 18, 2007 to the Trust Fund is to include
principal due after August 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) of
Section 5.01 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 Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF2 (the “Trust Fund”) created pursuant to the Trust Agreement, shall have
the same rights as the Seller 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 Master Servicer,
except as otherwise specified in Exhibit A hereto. The Master Servicer, with
prior consent of the NIMS Insurers, 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, as provided
in
Article X (Default) of the SWSA. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer be required to assume any
obligations of the Seller 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 Mortgage
Loans (other than those representations and warranties made by the Servicer
in
Section 3.01 of the SWSA, which the Servicer hereby restates as of the Closing
Date) in connection with the transactions contemplated by the Trust Agreement
and issuance of the Certificates issued pursuant thereto.
3
7. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary hereof) or required to be provided to the Trustee shall
be in writing and shall be deemed received or given when mailed first-class
mail, postage prepaid, addressed to each other party at its address specified
below or, if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender of such
notice. Each party may designate to the other parties in writing, from time
to
time, other addresses to which notices and communications hereunder shall be
sent.
All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
SASCO
2007-WF2
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: SASCO 2007-WF2
All
notices and other written information required to be delivered to the Securities
Administrator under the Agreement shall be delivered to the Securities
Administrator at the following address:
4
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, SASCO 2007-WF2
(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 Trustee hereunder shall be delivered
to
the Trustee at the following address:
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
SASCO 2007-WF2
All
written information required to be delivered to the Seller hereunder shall
be
delivered to LBH at the following address:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Contract Finance - SASCO 2007-WF2
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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. [RESERVED]
9. Acknowledgement.
The
Servicer hereby acknowledges that the rights and obligations of LBB under the
SWSA will be assigned to the Seller on the Closing Date pursuant to the
Assignment and Assumption Agreement; that such rights and obligations, as
amended by this Agreement will, in turn, be re-assigned by the Seller to SASCO
under the Mortgage Loan Sale and Assignment Agreement; and that such rights
and
obligations will simultaneously be re-assigned by SASCO to the Trustee on behalf
of the Trust Fund under the Trust Agreement. The Servicer agrees that the
Assignment and Assumption Agreement, the Mortgage Loan Sale and Assignment
Agreement and the Trust Agreement will each be a valid assignment and assumption
agreement or other assignment document required pursuant to Sections 2.02 and
12.10 of the SWSA and will constitute a valid assignment and assumption of
the
rights and obligations of LBB under the SWSA to the Seller, by the Seller to
SASCO, and by SASCO to the Trustee on behalf of the Trust Fund, as applicable.
In addition, the Trust Fund will make a REMIC election. The Servicer hereby
consents to each such assignment and assumption and acknowledges the Trust
Fund’s REMIC election.
5
10. 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.
11. 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.
12. Reconstitution.
The
Seller and the Servicer agree that this Agreement is a reconstitution agreement
executed in connection with a “Securitization Transaction,” and that the date
hereof is the “Reconstitution Date,” each as defined in the SWSA.
6
Executed
as of the day and year first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:
/s/
Xxxxxxx X.
Hiztmann
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Authorized Signatory
XXXXX
FARGO BANK, N.A.,
as
Servicer
By:
/s/
Xxxxxxxx
Xxxx
Name:
Xxxxxxxx X. Xxxx
Title:
Assistant Vice President
Acknowledged:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/
Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee and not individually
By:
/s/
Xxxxx X.
Xxxxxx
Name:
Xxxxx X. 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) Whole Loan
Transfers, Securitization Transactions and Reconstitution, and (iv)
Assignments of Mortgage, shall be disregarded for purposes relating
to
this Agreement. 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 “Accepted Servicing Practices” in Article I is hereby
amended in its entirety to read as
follows:
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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 applicable state, local and federal laws, rules and
regulations.
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3.
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The
definition of “Custodial Agreement” in Article I is hereby amended to read
as follows:
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Custodial Agreement:
The
custodial agreement relating to custody of all of the Mortgage Loans, between
the Custodian and the Trustee and acknowledged by the Master Servicer, the
Seller, the Servicer and the Depositor, dated as of August 1, 2007.
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4.
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The
definition of “Custodian” in Article I is hereby amended to read as
follows:
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Custodian:
means
Xxxxx Fargo Bank, N.A., and its successors and assigns.
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5.
|
The
definition of “Determination Date” in Article I is hereby amended to read
as follows:
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Determination
Date:
With
respect to each Remittance Date, the 15th
day of
the month in which such Remittance Date occurs, or, if such 15th
day is
not a Business Day, the next succeeding Business Day.
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6.
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A
new definition of “Document Transfer Event” is hereby added to Article I
immediately following the definition of “Distressed Mortgage Loan” to read
as follows:
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Document
Transfer Event:
The day
on which (i) Xxxxx Fargo Bank, N.A. or any successor thereto is no longer the
servicer of any of the Mortgage Loans, (ii) the senior, unsecured long-term
debt
rating of Xxxxx Fargo & Company is less than “BBB-” by Fitch or (iii) any
Rating Agency requires the Servicer to deliver the Retained Mortgage Files
to
the Custodian.
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7.
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A
new definition of “Eligible Investments” is hereby added to Article I
immediately following the definition of “Eligible Institution” to read as
follows:
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A-1
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 and 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;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Xxx, 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
any
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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8.
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A
new definition of “MERS Eligible Mortgage Loan” is hereby added to Article
I immediately following the definition of “MERS” to read as
follows:
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MERS
Eligible Mortgage Loan:
Any
Mortgage
Loan that has been designated by the Servicer as recordable in the name of
MERS,
as nominee.
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9.
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The
definition of “Mortgage Interest Rate” in Article I is hereby amended by
adding the phrase “net of any Relief Act Reduction” to the end of such
definition.
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10.
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New
definitions of “Non-MERS Eligible Mortgage Loan” and “Non-MERS Mortgage
Loans” are hereby added to Article I immediately following the definition
of “Non-Assigned Letter of Credit” to read as
follows:
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Non-MERS
Eligible Mortgage Loan:
Any
Mortgage
Loan other than a MERS Eligible Mortgage Loan.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
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11.
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New
definitions of “Prepayment Charge,” “Prepayment Charge Schedule” and
“Prepayment Interest Shortfall Amount” are added to Article I to
immediately precede the definition of “Prime Rate” and to read as
follows:
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Prepayment
Charge:
means
with respect to any Mortgage Loan and Distribution Date, the charges or
premiums, if any, exclusive of any servicing charges collected by the Servicer
in connection with a Mortgage Loan payoff, due in connection with a full
prepayment of such Mortgage Loan during the Principal Prepayment Period in
accordance with the terms thereof (other than any Servicer Prepayment Charge
Payment Amount).
Prepayment
Charge Schedule:
means a
data field in the Schedule of Mortgage Loans attached as Schedule I hereto
which
indicates the amount and method of calculation of the Prepayment Charge and
the
period during which such Prepayment Charge is imposed with respect to a Mortgage
Loan.
Prepayment
Interest Shortfall Amount:
means,
with respect to any Mortgage Loan that was subject to a Principal Prepayment
in
full or in part during any Principal Prepayment Period, which Principal
Prepayment was applied to such Mortgage Loan prior to such Mortgage Loan’s Due
Date in such Principal Prepayment 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.
A-3
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12.
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The
definition of “Prepayment Penalty” is hereby deleted in its entirety. In
addition, all references to “Prepayment Penalty” in the SWSA is hereby
replaced with “Prepayment Charge”.
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13.
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A
new definition of “Qualified Depository” is hereby added to Article 1 to
immediately follow the definition of “Qualified Correspondent” and to read
as follows:
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Qualified
Depository:
A
federal or state chartered depository institution or trust company, the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term unsecured debt obligations of such holding company)
are
rated at the time any amounts are held on deposit therein (a) “P-1” by Xxxxx'x
(or at least “A2” if such depository institution or trust company has no
short-term rating from Xxxxx’x), (b) at least “A-2” by S&P (or at least
“BBB+” if such depository institution or trust company has no short-term rating
from S&P) and (c) “F1” by Fitch (with respect to the preceding clauses (a),
(b) and (c), in each case if such rating agency is a Rating Agency, and such
applicable ratings from S&P, Fitch and Xxxxx’x, the “Required Ratings”),
provided, in each case, that following a downgrade, withdrawal or suspension
of
any such depository institution or trust company’s rating below any applicable
Required Rating, any funds held on deposit in a Custodial Account or Escrow
Account maintained with such depository institution or trust company shall
promptly (and in any case within not more than 30 calendar days) be moved to
another institution which has the Required Ratings, or to one or more segregated
trust accounts maintained with the trust department of a depository institution
or trust company as provided for in clause (ii); or (ii) the trust department
of
a federal or state chartered depository institution or trust company, which
depository institution or trust company has capital and surplus of not less
than
$50 million, acting in its fiduciary capacity. Qualified Depositories may bear
interest.
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14.
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The
definition of “Rating Agency or Agencies” is hereby amended by adding the
words “DBRS, Inc.” after the words “Standard & Poor’s Ratings
Services,”.
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15.
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A
new definition of “Realized Loss” is added to Article I immediately
following the definition of “Rating Agency or Agencies” to read as
follows:
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Realized
Loss:
With
respect to each Liquidated Mortgage Loan (as defined in the Trust Agreement),
an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the
date of liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable therefrom to the
Master Servicer or the Servicer with respect to such Mortgage Loan (other than
Monthly Advances of principal) including expenses of liquidation.
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16.
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A
new definition of “Relief Act Reduction” is hereby added to Article I
immediately following the definition of “Regulation AB” to read as
follows:
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Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application of
the
Servicemembers Civil Relief Act, any amount by which interest collectible on
such Mortgage Loan for the Due Date in the related Due Period is less than
the
interest accrued thereon for the applicable one-month period at the Mortgage
Interest Rate without giving effect to such reduction.
A-4
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17.
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A
new definition of “Servicer Prepayment Charge Payment Amount” is added to
Article I immediately after the new definition of “Servicer” to read as
follows:
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Servicer
Prepayment Charge Payment Amount:
Any
amount paid by the Servicer as a result of an impermissible waiver of a
Prepayment Charge pursuant to Section 4.20 of this Agreement.
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18.
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Section
2.01 (Conveyance of Mortgage Loans; Possession of Custodial Mortgage
Files; Maintenance of Retained Mortgage File and Servicing Files)
is
hereby amended as follows:
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(i) by
deleting the first paragraph thereof and replacing the word “Purchaser” with the
words “Trustee and the Trust Fund” in each instance; and
(ii) by
adding
the following after the word “Purchaser” in the fifteenth line of the second
paragraph:
or
within
60 days of the occurrence of a Document Transfer Event
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19.
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Section
2.02 (Books and Records; Transfers of Mortgage Loans) is hereby amended
as
follows:
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(i)
|
by
replacing the reference to “Purchaser” in the first paragraph and the
second sentence of the second paragraph of such section with “Trustee and
the Trust Fund;” and
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| (ii) |
by
adding the following paragraph as the last paragraph of such section:
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Only
if
so requested by the Seller or the Master Servicer, the Servicer, at the
Depositor’s expense, shall cause to be properly prepared and recorded as
Assignment of Mortgage in favor of the Trustee with respect to each Non-MERS
Mortgage Loan in each public recording office where such Non-MERS Mortgage
Loans
are recorded, as soon as practicable after the Closing Date (but in no event
more than 90 days thereafter to the extent delays are caused by the applicable
recording office).
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20.
|
The
parties acknowledge that the fourth paragraph of Section 2.02 shall
be
inapplicable to this Agreement.
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21.
|
The
parties acknowledge that Section 2.03 (Custodial Agreement; Delivery
of
Documents) shall be superseded by the provisions of the Custodial
Agreement.
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22.
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The
first paragraph of Section 3.01 (Company Representations and Warranties)
is hereby amended by replacing the words “to the Purchaser” with “to the
Trust Fund, the Master Servicer, the Depositor, the Trustee and the
Securities Administrator.”
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23.
|
Section
3.01(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.”
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A-5
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24.
|
Section
3.01(f) (Ability to Perform) is hereby amended by deleting the second
and
third sentences thereof.
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25.
|
Section
3.01(h) (No Consent Required) is hereby amended by deleting the words
“or
the sale of the Mortgage Loans.”
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26.
|
Section
3.01(j) (Sale Treatment), Section 3.01(l) (No Brokers’ Fees) and Section
3.01(m) (Fair Consideration) shall be inapplicable to this
Agreement.
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27.
|
A
new paragraph is hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as
follows:
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It
is
understood and agreed that the representations and warranties set forth in
Section 3.01 (a) through (h), (i), (k), (n) and (o) 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 Depositor, the Trustee, the Trust Fund, the NIMS Insurer and the Master
Servicer. Upon discovery by either the Servicer, the Depositor, the Master
Servicer, the NIMS Insurer 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 Depositor, Trustee or the
Trust Fund, the party discovering such breach shall give prompt written notice
to the other.
Within
sixty (60) days of the earlier of either discovery by or notice to the Servicer
of any breach of a representation or warranty set forth in Section 3.01 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 any Mortgage Loans, the related Mortgaged
Property or the priority of the security interest on such Mortgaged Property,
the Servicer shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Servicer shall,
at
the Trustee’s, Master Servicer’s or NIMS Insurer’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 and the NIMS Insurer (if and to the extent 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 Depositor,
the
Trustee, the Trust Fund, the NIMS Insurer and the Master Servicer and hold
each
of them harmless against any costs resulting from any claim, demand, defense
or
assertion based on or grounded upon, or resulting from, a breach of the
Servicer’s representations and warranties contained in this Agreement. It is
understood and agreed that the remedies set forth in this Section 3.01
constitute the sole remedies of the Depositor, the Master Servicer, the Trust
Fund, the NIMS Insurer and the Trustee respecting a breach of the foregoing
representations and warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 3.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Trustee,
the
NIMS Insurer 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 Depositor, the Trustee, the NIMS Insurer or the Master Servicer
for compliance with this Agreement.
A-6
In
addition, Section 3.03 is hereby amended as follows:
(a)
the
words “and the NIMS Insurer” shall be added immediately after the word
“Purchaser” in the fourth line of the first paragraph;
(b)
the
words “or the Purchaser” in the second sentence of the first paragraph shall be
replaced by the words “the Purchaser or the NIMS Insurer;”
(c)
the
word “Purchaser’s”, each time it is used in the second paragraph, shall be
replaced by the words “Purchaser’s or NIM Insurer’s;”
(d)
the
words “and the NIMS Insurer” shall be added immediately after the word
“Purchaser” in the third sentence of the third paragraph;
(e)
the
word “Purchaser,” each time it is used in the fifth paragraph, shall be replaced
by the words “Purchaser and the NIMS Insurer”; and the word “it” in the first
sentence of such fifth paragraph shall be replaced by the word “them”;
and
(f)
the
word “Purchaser,” each time it is used in the sixth paragraph, shall be replaced
by the words “Purchaser or the NIMS Insurer.”
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28.
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Section
4.01 (Company to Act as Servicer) is hereby amended by replacing
the
second paragraph of such section with the
following:
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Except
as
permitted, hereunder, the Servicer shall not permit any modification or waiver
with respect to any Mortgage Loan that (i) would change the Mortgage Interest
Rate, (ii) forgive the payment of principal or interest, (iii) reduce or
increase the outstanding principal balance (except for actual payments of
principal) or (iv) extend the due dates for payments due on a Mortgage Note
for
a period of not greater than 180 days; provided
that,
any
extension pursuant to this clause (iv) shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause
(iv) above, the Servicer shall make timely Monthly Advances on such Mortgage
Loan during such extension pursuant to Section 5.03 and in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by
reason of such arrangements, subject to Section 5.03 pursuant to which the
Servicer shall not be required to make any such Monthly Advances that, in its
reasonable judgment, would not be recoverable Monthly Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Servicer, such default is reasonably foreseeable,
the
Servicer, consistent with the standards set forth in this Section (i), may
also
waive, modify or vary any term of such Mortgage Loan (including but not limited
to modifications that would change the Mortgage Interest Rate, forgive the
payment of principal or interest or extend the final maturity date of such
Mortgage Loan, accept payment from the related Mortgagor of an amount less
than
the Stated Principal Balance in final satisfaction of such Mortgage Loan (such
payment, a “Short Pay-off”) or consent to the postponement of strict compliance
with any such term or otherwise grant indulgence to any Mortgagor; provided
that,
in the
judgment of the Servicer, any such modification, waiver or amendment could
reasonably be expected to result in collections and other recoveries in respect
of such Mortgage Loans in excess of net Liquidation Proceeds that would be
recovered upon the foreclosure of, or other realization upon, such Mortgage
Loan. In the event of such modification, the Servicer 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 5.03 to the extent of such new Monthly Payment. Without limiting the
generality of the foregoing, the Servicer 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; provided,
further, that upon the full release or discharge, the Servicer shall notify
the
related Custodian of the related Mortgage Loan of such full release or
discharge. If reasonably required by the Servicer, the Purchaser shall furnish
the Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement. Promptly after the execution of any modification
of
any Mortgage Loan pursuant to this Section 4.01, the Servicer shall forward
to
the Master Servicer copies of any documents evidencing such modification.
Notwithstanding anything to the contrary contained in this Agreement, the
Servicer shall not make or permit any modification, waiver or amendment of
any
term of any Mortgage Loan (including any Prepayment Charge due on 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.
A-7
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29.
|
Section
4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
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(i) the
words
“in trust for the Purchaser and/or subsequent purchasers of Mortgage Loans -
P&I” in the fourth and fifth lines of the first sentence of the first
paragraph shall be replaced by the following: “in
trust
for the Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2
and
various Mortgagors”.
(ii) by
amending clause (viii) to read as follows:
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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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30.
|
Section
4.05 (Permitted Withdrawals From Custodial Account) is hereby amended
as
follows:
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(i) by
replacing the last five lines of clause (ii) with the following:
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;
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(ii)
|
by
amending clause (v) thereof by adding the words “Section 4.01 and” before
the reference to Section 8.01.
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31.
|
Section
4.06 (Establishment of and Deposits to Escrow Account) is hereby
amended
by deleting the words “Purchaser and/or subsequent purchasers of
Residential Mortgage Loans, and various Mortgagors - T&I” in the
fourth and fifth lines of the first sentence of the first paragraph,
and
replacing it with the following:
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A-8
in
trust
for the Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2
and
various Mortgagors.
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32.
|
Section
4.07 (Permitted Withdrawals from Escrow Account) is hereby amended
by
removing the word “and” at the end of clause (viii), replacing the period
at the end of clause (ix) with “; and” and adding a new clause (x) to read
as follows:
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(x) to
transfer funds to another Eligible Institution in accordance with Section 4.09
hereof.
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33.
|
Section
4.09 (Protection of Accounts) is hereby amended as
follows:
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|
(i)
|
by
replacing the words “the Purchaser” with “the Master Servicer” in each
instance; and
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|
(ii)
|
by
adding the following sentence as the last sentence of such
section:
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The
Servicer shall give notice to the Master Servicer of any transfer of the
Custodial Account, the Subsidy Account or the Escrow Account to a different
Eligible Institution no later than thirty (30) days after any such transfer
is
made and deliver to the Master Servicer, upon request, a certification notice
in
the form of Exhibit F or Exhibit G, as applicable, with respect to such Eligible
Institution.
(iii) by
adding
the following paragraph as the new second paragraph of such
section:
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Servicer be invested in Eligible Investments. Any such Eligible Investment
shall mature no later than the Business Day immediately preceding the related
Remittance Date; provided,
however,
that if
such Eligible Investment is an obligation of an Eligible Institution (other
than
the Servicer) that maintains the Custodial Account or the Escrow Account, then
such Eligible Investment may mature on the related Remittance Date. Any such
Eligible Investment shall be made in the name of the Servicer in trust for
the
benefit of the Trustee. All income on or gain realized from any such Eligible
Investment shall be for the benefit of the Servicer and may be withdrawn at
any
time by the Servicer. Any losses incurred in respect of any such investment
shall be deposited in the Custodial Account or the Escrow Account, by the
Servicer out of its own funds immediately as realized.
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34.
|
The
last sentence of Section 4.12 (Maintenance of Fidelity Bond and Errors
and
Omissions Insurance) is hereby amended and restated in its entirety
to
read as follows:
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“Upon
the
request of any Purchaser or the NIMS Insurer, the Company shall cause to be
delivered to such Purchaser or the NIMS Insurer, as applicable, a certificate
of
insurance for such Fidelity Bond and Errors and Omissions Insurance Policy
and a
statement from the surety and the insurer that such Fidelity Bond and Errors
and
Omissions Policy shall in no event be terminated or materially modified without
thirty (30) days prior written notice to the Purchaser and the NIMS
Insurer.”
A-9
Section
4.13 (Inspections) is amended and restated in its entirety to read as
follows:
Inspections
“If
any
Mortgage Loan is more than sixty (60) days delinquent and the Servicer has
not
entered into any temporary alternative repayment arrangements (as permitted
by
this Agreement) with the related Mortgagor,
the
Servicer or its agent shall inspect the Mortgaged Property in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer to assure that the value of the Mortgaged Property is being
preserved. The
Servicer or its agent shall inspect the Mortgaged Property as often as deemed
necessary by the Servicer in accordance with Accepted Servicing Practices or
as
may be required by the primary mortgage guaranty insurer, to assure itself
that
the value of the Mortgaged Property is being preserved.
The
Servicer shall keep a record of each such inspection and, upon request, shall
provide the Master Servicer with an electronic report of each such
inspection.”
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35.
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Section
4.16 (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”, (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 ( and provided a copy
of
the same to the Master Servicer, the Trustee and the NIMS Insurer) 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-10
(iii)
deleting
the first sentence of the third paragraph thereto, (iv) replacing the word
“sentence” with “paragraph” in the seventh line of the third paragraph thereto,
(v) replacing the word “advances” in the sixth line of the fifth paragraph
thereof with “Monthly Advances,” and (vi) by adding the following to the end of
such Section:
The
Servicer shall include in its monthly defaulted loan report any REO Properties
that were sold for a price less than 90% of the unpaid principal balance of
the
related Mortgage Loan (and upon receipt from the Servicer, the Master Servicer
shall forward such information to the NIMS Insurer as promptly as practicable,
provided that in connection with the delivery of such copies to the NIMS
Insurer, the Master Servicer shall have no obligation to verify, recompute,
reconcile, recalculate or reformat any information provided therein prior to
its
delivery to the NIMS Insurer and shall not have any liability to the NIMS
Insurer for any errors or omissions with respect to information contained in
such report).
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36.
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Section
4.20 (Prepayment Penalty Waivers) is hereby amended by replacing
the words
“servicing similar Mortgage Loans” where it is used in the first paragraph
with the words “servicing mortgage loans similar to the Mortgage
Loans.”
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37.
|
Section
4.25 (Use of Subservicers and Subcontractors) is hereby amended by
adding
the following sentences at the end of subparagraph (a)
thereto:
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The
Servicer may enter into subservicing agreements (provided that such agreements
would not result in a withdrawal or a downgrading by the Rating Agencies of
the
rating on any Class of Certificates) with Subservicers, for the servicing and
administration of the Mortgage Loans.
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38.
|
Section
5.01 (Remittances) is hereby amended as
follows:
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(i)
|
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: SASCO 2007-WF2
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(ii)
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by
replacing the words “second Business Day” in the first and second
sentences of the second paragraph of such section with “first Business
Day.”
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A-11
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39.
|
Section
5.02 (Statements to Purchaser) is hereby amended to read as
follows:
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Section
5.02 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 (and the Master Servicer shall
as
promptly as practicable upon receipt from the Servicer furnish to the NIMS
Insurer) (i) a monthly remittance advice in the format set forth in Exhibit
D-1
hereto, a monthly defaulted loan report in the format set forth in Exhibit
D-2
hereto (or in such other format mutually agreed to between the Servicer and
the
Master Servicer) relating to the period ending on the last day of the preceding
calendar month, a monthly loan loss report in the format set forth in Exhibit
D-3 hereto (or in such other format mutually agreed to between the Servicer
and
the Master Servicer) and a monthly modified loan report in the format set forth
in Exhibit D-4 hereto (or in such other format mutually agreed to between the
Servicer and the Master Servicer) 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; provided,
however, the
information required by Exhibit D-2 and Exhibit D-3 is limited to that which
is
readily available to the Servicer and is mutually agreed to by the Servicer
and
Master Servicer.
The
Servicer shall provide the Master Servicer (and the Master Servicer shall as
promptly as practicable upon receipt from the Servicer furnish the NIMS Insurer)
with such information available to it concerning the Mortgage Loans as is
necessary for the Securities Administrator to prepare the Trust Fund’s federal
income tax return as the Securities Administrator may reasonably request from
time to time.
The
Master Servicer shall deliver copies of the monthly remittance advance and
such
other information required to be delivered pursuant to this Section 5.02 to
the
NIMS Insurer in the same format as received from the Servicer. In connection
with the delivery of such documentation to the NIMS Insurer, the Master Servicer
shall have no obligation to verify, recompute, reconcile, recalculate or
reformat any such documentation prior to its delivery to the NIMS Insurer and
shall not have any liability for any errors or omissions with respect to
information contained in such documentation.
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40.
|
Section
6.04 (Annual Statement as to Compliance) is hereby amended as
follows:
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(a)
|
replacing
the words “the Purchaser and any Depositor” with “the Master Servicer, the
Securities Administrator and any
Depositor”;
|
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(b)
|
replacing
the words “the Purchaser and such Depositor” with “the Master Servicer,
the Securities Administrator and the
Depositor”;
|
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(c)
|
replacing
the reference to “2007” with “2008”;
and
|
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(d)
|
by
adding the following at the end of Section
6.04:
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A
copy of any annual statement of compliance of the Servicer provided to the
Master Servicer under this section 6.04 shall be delivered by the Master
Servicer to the NIMS Insurer not later than 15 days following the filing of
any
Form 10-K with respect to the Trust Fund incorporating such statement of
compliance. In connection with the delivery of such annual statement of
compliance to the NIMS Insurer, the Master Servicer shall have no obligation
to
verify or otherwise confirm the statements made therein nor shall the Master
Servicer have any liability to the NIMS Insurer for any misstatements or
omissions made by the Servicer in such statement.
A-12
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41.
|
Section
6.05 (Annual Independent Public Accountants’ Servicing Reports) is hereby
amended and restated in its entirety to read as
follows:
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[Reserved]
|
42.
|
Section
6.06 (Report on Assessment of Compliance and Attestation) is hereby
amended as follows:
|
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(a)
|
by
replacing the words “the Purchaser and any Depositor” with “the Depositor,
the Securities Administrator and the Master Servicer” in each instance
except with respect to the
first sentence of Section 6.06(ii);
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(b)
|
by
replacing the words “the Purchaser and such Depositor” with “the
Depositor, the Securities Administrator and such Master Servicer” in each
instance;
|
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(c)
|
by
replacing the words “delivered to the Purchaser” with “delivered to the
Depositor, the Securities Administrator and the Master Servicer”;
|
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(d)
|
by
replacing the words “deliver to the Purchaser, any Depositor” with
“deliver to the Depositor, the Securities Administrator and the Master
Servicer”;
|
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(e)
|
by
removing the words “substantially,” “the form of” and “delivered to the
Purchaser at the time of any Securitization Transaction” from subsection
(i) thereof;
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(f)
|
by
replacing all references to “2007” with
“2008”;
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(g)
|
by
replacing the words “the Purchaser and any Depositor” in the first
sentence of Section 6.06(i) and Section 6.06(ii) with “the Depositor, the
Securities Administrator and the Master Servicer”;
and
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(h)
|
by
adding the following as the last sentence of the last paragraph of
Section
6.06(i):
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The
Master Servicer shall deliver to the NIMS Insurer a copy of each assessment
of
compliance received from the Servicer pursuant to Section 6.06(i) and each
attestation of such assessment of compliance received from the Servicer (or
the
Securities Administrator) under Section 6.06(ii) not later than 15 days after
the filing of any Form 10-K with respect to the Trust Fund incorporating such
reports. In connection with the delivery of copies of such reports to the NIMS
Insurer, the Master Servicer shall have no obligation to verify, recompute,
reconcile, recalculate or reformat any of the information contained therein
prior to its delivery to the NIMS Insurer and shall have no liability to the
NIMS Insurer for any error or omission of the Servicer contained in such
reports.
A-13
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43.
|
Section
6.08 (Rights to Examine Company Records) is hereby amended by adding
the
words “and the NIMS Insurer” immediately after the word “Purchaser” in the
first sentence and the words “or the NIMS Insurer, as applicable”
immediately after the word “Purchaser” in the second
sentence.
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44.
|
Section
6.09 (Compliance with REMIC Provisions) is hereby amended by adding
the
words (“with a copy delivered to the NIMS Insurer”) immediately after the
word “received” in the first and only sentence of such
Section.
|
|
45.
|
Section
7.02 (Financial Statements; Servicing Facility) is hereby amended
by
adding the words “and the NIMS Insurer” immediately after the word
“Purchaser” in the first sentence and by adding the words “of the
Depositor or the NIMS Insurer” immediately after the word “request” in the
second sentence of the first
paragraph.
|
|
46.
|
Section
8.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
|
The
Servicer shall indemnify Xxxxxx Brothers Bank, FSB, the Depositor, the Trust
Fund, the NIMS Insurer, the Trustee 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 obligations to provide any information,
report, certification, accountants’ letter or other material pursuant to
Sections 6.04 and 6.06 hereunder) or for any inaccurate or misleading
information provided pursuant to Sections 6.04 and 6.06 hereunder. The Servicer
immediately shall notify Xxxxxx Brothers Bank, FSB, 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 Master Servicer or 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 8.01, 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.
|
47.
|
Section
8.04 (Limitation on Resignation and Assignment by Company) is hereby
amended as follows:
|
|
(a)
|
by
adding the words “and the NIMS Insurer” after the words “consent of the
Purchaser” in the first paragraph;
|
|
(b)
|
by
adding the words “and the NIMS Insurer” after
the words “delivered to the Purchaser” in the second paragraph;
and
|
A-14
|
(c)
|
by
adding the words “and the NIMS Insurer” after the words “consent of the
Purchaser and the words “(with the consent of the NIMS Insurer)” after the
words “then the Purchaser” in the third
paragraph.
|
|
48.
|
Subsection
(c) of Section 9.01 (Removal of Mortgage Loans from Inclusion Under
this
Agreement Upon an Agency Sale, Whole Loan Sale or Securitization
Transaction) shall be inapplicable to this Agreement.
|
|
49.
|
Section
9.01 (Removal of Mortgage Loans from Inclusion Under this Agreement
Upon
and Agency Sale, Whole Loan Sale or Securitization Transaction) is
hereby
amended as follows:
|
|
(a)
|
Subsection
(d)(i)(D) is hereby amended in its entirety to read as
follows:
|
a
description of any affiliation or relationship (of a type described in Item
1119
of Regulation AB) between the Company, each Third-Party Originator, each
Subservicer and any of the parties listed on Exhibit L hereto.
|
(b)
|
Subsection
(d)(vi)(A)(7) is hereby amended in its entirety to read as
follows:
|
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 listed on Exhibit L hereto.
|
(c)
|
Subsection
(e) is hereby amended by (1) changing the reference to “the Purchaser,
each affiliate of the Purchaser” to “the Trust Fund, the Master Servicer,
the Depositor and the Trustee,” (2) deleting the reference to “or the
Depositor,” and (3) deleting the reference to “and of the Depositor”;
and
|
|
(d)
|
by
changing any reference to “Purchaser” to “Master Servicer” in each
instance in subsections (d) and (e) and the last four paragraphs
of
Section 9.01.
|
|
50.
|
Section
10.01 (Events of Default) is hereby amended
by:
|
|
(a)
|
changing
any reference to clause (x) to clause (viii);
|
|
(b)
|
changing
any reference to clause (xi) to clause (ix);
|
|
(c)
|
changing
any reference to “Purchaser” to “Master
Servicer”;
|
|
(d)
|
changing
the reference to “five (5) days” to “two (2) Business Days” in clause (i);
|
|
(e)
|
adding
the words “within the applicable cure period” after the word “remedied” in
the first line of the second paragraph;
|
A-15
|
(f)
|
adding
the words “or the NIMS Insurer” immediately before the words “, by notice
in writing to the Company” in the second
paragraph;
|
|
(g)
|
adding
the words “, with the consent of the NIMS Insurer,” after the word “shall”
in the first sentence of the third
paragraph.
|
|
51.
|
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 and the NIMS Insurer”.
|
|
52.
|
Section
11.01 (Termination) is hereby amended by restating subclause (ii)
thereof
to read as below and adding the following sentence after the first
sentence of Section 11.01:
|
|
(ii)
|
mutual
consent of the Servicer, the Master Servicer and the NIMS Insurer
in
writing, provided such termination is also acceptable to the Trustee
and
the Rating Agencies.
|
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 Sections 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.
|
53.
|
Section
11.02 (Termination Without Cause) is hereby amended in its entirety
to
read as follows:
|
Xxxxxx
Brothers Bank, FSB (with the prior consent of the Trustee and the NIMS Insurer)
may terminate, at its sole option, any rights the Company may have hereunder,
without cause as provided in this Section 11.02. Any such notice of termination
shall be in writing and delivered to the Company by registered mail as provided
in Section 12.05.
|
The
Company shall be entitled to receive, as such liquidated damages,
upon the
transfer of the servicing rights, an amount equal to 1.50% of the
aggregate outstanding principal amount of the Mortgage Loans as of
the
termination date paid by Xxxxxx Brothers Bank, FSB to the Company
with
respect to all of the Mortgage Loans for which a servicing fee rate
of
.50% is paid per annum. In the event that it is terminated pursuant
to
this Section 11.02, the Company shall be required, at the expense
of
Xxxxxx Brothers Bank, FSB, to deliver to the Custodian the entire
contents
of the Retained Mortgage File, to the extent such contents were not
previously delivered to the Custodian pursuant to this Agreement
or the
Custodial Agreement.
|
|
54.
|
Section
12.01 (Successor to Servicer) is hereby amended in its entirety to
read as
follows:
|
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Sections 8.04, 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 with the consent of the NIMS Insurer,
(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, Xxxxxx Brothers Bank, FSB, the Trustee, the NIMS Insurer 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 and the NIMS Insurer
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 Xxxxxx Brothers Bank, FSB, 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
3.01 and 3.02 and the remedies available to the Trust Fund under Section 3.03
shall be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement.
A-16
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.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer, the NIMS Insurer 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 8.04, 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 Custodial 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.
A-17
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.
|
55.
|
Section
12.02 (Amendment) is hereby amended by replacing the words “by written
agreement signed by the Company and the Purchaser” with “by written
agreement signed by the Servicer and Xxxxxx Brothers Bank, FSB, with
the
written consent of the Master Servicer, the Trustee and the NIMS
Insurer”.
|
|
56.
|
Section
12.04 (Duration of Agreement) is hereby amended by deleting the last
sentence thereof.
|
|
57.
|
Section
12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
|
|
58.
|
A
new Section 12.12 (Intended Third Party Beneficiaries) is hereby
added to
the SWSA to read as follows:
|
Section
12.12 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 Trust Fund, Master Servicer, the
Depositor, the NIMS Insurer (so long as the Notes issued by the NIM are
outstanding) 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 Trust
Fund, the Master Servicer, the Depositor, the Trustee and the NIMS Insurer
as if
they were parties to this Agreement, and the Trust Fund, the Master Servicer,
the Depositor, the Trustee and the NIMS Insurer 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 Trust Fund, the Master Servicer, the Depositor, the
Trustee and the NIMS Insurer 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.
|
59.
|
Exhibit
D-3 (Form of Loan Loss Report) is hereby added to the SWSA.
|
|
60.
|
Exhibit
D-4 (Form of Modified Loan Report) is hereby added to the SWSA.
|
|
61.
|
Exhibit
L (Transaction Parties) is hereby added to the SWSA.
|
A-18
|
62.
|
Exhibit
H to the SWSA is hereby replaced in its entirety by Exhibit F attached
hereto.
|
X-00
XXXXXXX
X-0
SASCO
2007-WF2 Trust Agreement
B-1
EXHIBIT
B-2
Assignment
and Assumption Agreement
X-0
XXXXXXX
X
XXXX
X-0
Execution
Copy
5/26/06
XXXXXX
BROTHERS BANK, FSB
Purchaser
and
XXXXX
FARGO BANK, N.A.
Company
MASTER
SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated
as of May 1, 2006
Fixed
Rate and Adjustable Rate Prime and Subprime Mortgage Loans
TABLE
OF CONTENTS
|
ARTICLE
I
|
1
|
|
DEFINITIONS
|
1
|
|
ARTICLE
II
|
15
|
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT;
|
|
|
DELIVERY
OF DOCUMENTS
|
15
|
|
ARTICLE
III
|
19
|
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
19
|
|
ARTICLE
IV
|
40
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
40
|
|
ARTICLE
V
|
59
|
|
PAYMENTS
TO PURCHASER
|
59
|
|
ARTICLE
VI
|
61
|
|
GENERAL
SERVICING PROCEDURES
|
61
|
|
ARTICLE
VII
|
66
|
|
COMPANY
TO COOPERATE
|
66
|
|
ARTICLE
VIII
|
67
|
|
THE
COMPANY
|
67
|
|
ARTICLE
IX
|
69
|
i
|
REMOVAL
OF MORTGAGE LOANS FROM AGREEMENT
|
69
|
|
ARTICLE
X
|
79
|
|
DEFAULT
|
79
|
|
ARTICLE
XI
|
81
|
|
TERMINATION
|
81
|
|
MISCELLANEOUS
PROVISIONS
|
83
|
EXHIBITS
|
Exhibit
A
|
Form
of Assignment and Conveyance
|
|
|
Agreement
|
||
|
Exhibit
B
|
Custodial
Agreement
|
|
|
Exhibit
C
|
Contents
of Custodial Mortgage File,
Retained
Mortgage File and Servicing File
|
|
|
Exhibit
D
|
Data
File
|
|
|
Exhibit
E
|
Underwriting
Guidelines
|
|
|
Exhibit
F
|
Custodial
Account Certifications
|
|
|
Exhibit
G
|
Escrow
Account Certifications
|
|
|
Exhibit
H
|
Servicing
Criteria
|
|
|
Exhibit
I
|
Sarbanes
Certification
|
|
|
Exhibit
J
|
Form
of Assignment, Assumption and
|
|
|
Recognition
Agreement
|
ii
This
is a
Master Seller's Warranties and Servicing Agreement for fixed rate and adjustable
rate residential first and second lien mortgage loans, dated and effective
as of
May 1, 2006, and is executed between Xxxxxx Brothers Bank, FSB, as purchaser
(the "Purchaser"), and Xxxxx Fargo Bank, N.A., as seller and servicer (the
"Company").
WITNESSETH
WHEREAS,
the Purchaser has agreed to purchase from the Company and the Company has
agreed
to sell to the Purchaser from time to time (each a “Transaction”) on a servicing
retained basis certain mortgage loans (the "Mortgage Loans") which shall
be
delivered as whole loans (each a “Loan Package”) on various dated (each a
“Closing Date”) as provided for in certain Assignment and Conveyance Agreements
by and between the Purchaser and the Company as executed in conjunction with
each Transaction;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first or second lien on a residential dwelling
located in the jurisdiction indicated on the related Mortgage Loan Schedule;
and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of
the
Mortgage Loans and the conveyance, servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
the Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan that contains a provision pursuant to which the Mortgage Interest
Rate is adjusted periodically.
1
Adjustment
Date:
As to
each Adjustable Rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage Note and
Mortgage.
Agency/Agencies:
Xxxxxx
Xxx, Xxxxxxx Mac or GNMA, or any of them as applicable.
Agency
Sale:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to
an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement:
This
Master Seller's Warranties and Servicing Agreement and all exhibits hereto,
amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage
Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property; provided, however, that in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan.
Assignment
and Conveyance Agreement:
The
agreement substantially in the form of Exhibit A attached hereto.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage
to the
Purchaser, or if the related Mortgage has been recorded in the name of MERS
or
its designee, such actions as are necessary to cause the Purchaser to be
shown
as the owner of the related Mortgage on the records of MERS for purposes
of the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS.
Assignment
of Mortgage Note and Pledge Agreement:
With
respect to a Cooperative Loan, an assignment of the Mortgage Note and Pledge
Agreement.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Balloon
Loan:
A
Mortgage Loan for which the Monthly Payments will not fully amortize the
loan by
the end of the term, at which time the balance of the principal is due in
a lump
sum.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the states where the parties are located, are
authorized or obligated by law or executive order to be closed.
2
Buydown
Agreement:
An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Company or any other source, plus interest earned thereon,
in
order to enable the Mortgagor to reduce the payments required to be made
from
the Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date:
The
date or dates, set forth in the related Commitment Letter, on which from
time to
time the Purchaser shall purchase and the company shall sell the Mortgage
Loans
listed on the respective Mortgage Loan Schedule for each
Transaction.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Combined
Loan-to-Value Ratio or CLTV:
As to
any Second Lien Mortgage Loan at any date of determination, the ratio on
such
date of the principal balance of such Mortgage Loan, plus the principal balance
of any Superior Lien, to the Appraised Value of the related Mortgaged
Property.
Commission:
The
United States Securities and Exchange Commission.
Commitment
Letter:
The
commitment letter between the Company and the Purchaser which sets forth,
among
other things, the Purchase Price for certain Mortgage Loans described therein
to
be sold by the Company and purchased by the Purchaser on the Closing Date
set
forth therein.
Company:
Xxxxx
Fargo Bank, N.A., or its successor in interest or assigns, or any successor
to
the Company under this Agreement appointed as herein provided.
Company
Information:
As
defined in Section 9.01(e)(i)(A).
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
3
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of
the
real property that the related Project comprises, including the land, separate
dwelling units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Lien Search:
A
search for (a) federal tax liens, mechanics’ liens, lis pendens, judgments of
record or otherwise against (i) the Cooperative, (ii) the seller of the
Cooperative Apartment and (iii) the Company, if the Cooperative Loan is a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the
deed
of the Project into the Cooperative.
Cooperative
Loan:
A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Covered
Loan:
A
Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6d, Appendix E, as revised from
time to time and in effect on each related Closing Date.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Assignment of Mortgage and other Mortgage Loan Documents, if applicable,
a form
of which is annexed hereto as Exhibit B.
Custodial
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 1 through 5 of Exhibit C attached hereto, which
have
been delivered to the Custodian as of the Closing Date.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement
as
provided therein.
Cut-off
Date:
With
respect to each Transaction, the first day of the month in which the Closing
Date occurs.
Data
File:
The
electronic data file prepared by the Company and delivered to the Purchaser
including the data fields set forth on Exhibit D with respect to each Mortgage
Loan, in relation to each Transaction.
4
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the
terms
of this Agreement and which is, in the case of a substitution pursuant to
Section 3.03, replaced or to be replaced with a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Distressed
Mortgage Loan:
As of
any Transfer Date, any Mortgage Loan that was not in foreclosure, bankruptcy,
actively participating in a repayment plan or REO, but which is delinquent
in
payment for a period of ninety-one (91) days or more, without giving effect
to
any grace period permitted by the related Mortgage or Mortgage Note.
Notwithstanding the prior sentence, any Mortgage Loan being referred to
foreclosure as of the Notice Date or in the month of the Transfer Date shall
be
considered a Distressed Mortgage Loan. No Mortgage Loan shall be considered
delinquent for the purpose of this definition by virtue of the related Mortgagor
having made payment to a prior servicer.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second
(2nd)
day of
the month preceding the month of the Remittance Date and ending on the first
(1st)
day of
the month of the Remittance Date.
Eligible
Deposit Account:
An
account that is maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution.
Eligible
Institution:
Any of
the following:
|
(i)
|
an
institution whose:
|
|
(A)
|
commercial
paper, short-term debt obligations, or other short-term deposits
are rated
at least “A-1+” or long-term unsecured debt obligations are rated at least
“AA-“ by S&P, if the amounts on deposit are to be held in the account
for no more than 365 days; or
|
|
(B)
|
commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P, if the amounts on deposit
are to be held in the account for no more than thirty (30) days
and are
not intended to be used as credit enhancement. Upon the loss of
the
required rating set forth in this clause (ii), the accounts shall
be
transferred immediately to accounts which have the required rating.
Furthermore, commingling by the Servicer is acceptable at the A-2
rating
level if the Company is a bank, thrift, or depository and provided
the
Company has the capability to immediately segregate funds and commence
remittance to an Eligible Deposit Account upon a downgrade;
or
|
5
|
(ii)
|
the
corporate trust department of a federal depository institution
or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code
of Federal
Regulation Section 9.10(b), which, in either case, has corporate
trust
powers and is acting in its fiduciary
capacity.
|
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section 4.06.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
First
Lien:
With
respect to each Mortgaged Property, the lien on the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a first lien on the
Mortgaged Property.
First
Lien Mortgage Loan:
A
Mortgage Loan secured by a First Lien on the Mortgage Property.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which is added to the Index in order to
determine the related Mortgage Interest Rate, as set forth in the respective
Mortgage Loan Schedule.
6
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
“high risk home,” “predatory” or similar loan under any other applicable state,
federal or local law or (c) a Mortgage Loan categorized as “High Cost” pursuant
to the Standard & Poor’s Glossary for File Format for LEVELS® Version 5.6d,
Appendix E, as revised from time to time and in effect on each related Closing
Date.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
related Mortgage Loan Schedule and set forth in the related Mortgage Note
for
the purpose of calculating the interest thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan for which an interest-only payment feature is allowed during
the
interest-only period set forth in the related Mortgage Note.
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 First Lien Mortgage Loan, the ratio of the original loan amount
of the Mortgage Loan at its origination (unless otherwise indicated) to the
Appraised Value of the Mortgaged Property.
LPMI
Policy: A
PMI
Policy for which the Company pays all premiums from its own funds, without
reimbursement.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage or Assignment of Mortgage
has
been registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
eighteen digit Mortgage Identification Number.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date required to be advanced
by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
7
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan or
in the
case of an Interest Only Mortgage Loan, payments of (i) interest, or (ii)
principal and interest, as applicable, 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 the Pledge Agreement securing the
Mortgage Note for a Cooperative Loan.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
4.11.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note in accordance with the
provisions of the Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the documents listed on Exhibit C attached hereto.
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 related Mortgage Interest Rate minus
the
Servicing Fee Rate.
Mortgage
Loan Schedule:
With
respect to each Transaction, a schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan: (1) the Company’s
Mortgage Loan number; (2) the city state and zip code of the Mortgaged Property;
(3) a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three-family residence, four-family residence,
planned unit development, Cooperative Apartment or condominium; (4) the current
Mortgage Interest Rate; (5) the current net Mortgage Interest Rate; (6) the
current Monthly Payment; (7) the original term to maturity; (8) the scheduled
maturity date; (9) the principal balance of the Mortgage Loan as of the Cut-off
Date after deduction of payments of principal due on or before the Cut-off
Date
whether or not collected; (10) the Loan-to-Value Ratio; (11) a code indicating
the mortgage guaranty insurance company; (12) the Servicing Fee Rate; (13)
the
Gross Margin; (14) the next Adjustment Date, and (15) code indicating whether
the loan is subject to LPMI, together with an electronic data tape containing
the fields described in Exhibit D. The Mortgage Loan Schedule for each Loan
Package shall be an exhibit to the respective Assignment and Conveyance
Agreement.
8
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
or
with respect to a Cooperative Loan, the related Cooperative
Apartment.
Mortgagor:
The
obligor on a Mortgage Note.
Non-Assigned
Letter of Credit:
A
Letter of Credit in which the named beneficiary is the Company.
Notice
Date:
The
first Business Day of each calendar month, as applicable.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an Assistant Vice President
and
certified by the Treasurer or the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Company, and delivered to the Purchaser as
required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Periodic
Interest Rate Cap:
As to
each Adjustable Rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date pursuant to the terms of the
Mortgage Note.
Person:
Any
individual, corporation, partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
Pledge
Holder:
With
respect to a Pledged Asset Mortgage Loan, the entity that holds the Pledge
Account, manages the Pledge Account and provides the Letter of
Credit.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
Pledged
Asset Mortgage Loan:
A
Mortgage Loan for which the Mortgagor has pledged financial assets as partial
collateral for the Mortgage Loan, in lieu of a cash down payment.
9
PMI
Policy:
A
policy of primary mortgage guaranty insurance evidenced by an electronic
form
and certificate number issued by a Qualified Insurer, as required by this
Agreement with respect to certain Mortgage Loans. The premiums on a PMI Policy
may be paid by the Mortgagor or by the Company from its own funds, without
reimbursement. If the premiums are paid by the Company, the PMI Policy is
an
LPMI Policy.
Prepayment
Penalty:
Payments calculated pursuant to the Underwriting Guidelines and due on a
Mortgage Loan as the result of a Principal Prepayment in full of the Mortgage
Loan, not otherwise due thereon in respect of principal or interest, which
are
intended to be a disincentive to prepayment.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
calendar month preceding the month in which the related Remittance Date
occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
purchase price for each Loan Package shall be the percentage of par as stated
in
the related Commitment Letter, multiplied by the aggregate scheduled principal
balance, as of the related Cut-off Date, of the Mortgage Loans in the related
Loan Package, after application of scheduled payments of principal for such
related Loan Package due on or before the related Cut-off Date whether or
not
collected. The purchase price for a Loan Package may be adjusted as stated
in
the related Commitment Letter.
Purchaser:
Xxxxxx
Brothers Bank, FSB, or its successor in interest or any successor or assignee
to
the Purchaser under this Agreement as herein provided.
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
one
hundred eighty (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.
10
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Mae or Xxxxxxx Mac.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Company for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage
loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a Mortgage
Loan Remittance Rate not less than, and not more than two percent (2%) greater
than the Mortgage Loan Remittance Rate of the Deleted Mortgage Loan; (iii)
have
a remaining term to maturity not greater than and not more than one year
less
than that of the Deleted Mortgage Loan; (iv) comply with each representation
and
warranty set forth in Sections 3.01 and 3.02; and (v) be of the same type
as the
Deleted Mortgage Loan.
Rating
Agency or Agencies:
Any
nationally recognized statistical rating agency, or its successor, including
Standard & Poor’s Ratings Services, Xxxxx’x Investors Service, Inc. and
Fitch Ratings.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
Any
Securitization Transaction, Agency Sale or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to
any or
all of the Mortgage Loans serviced hereunder, in connection with an Agency
Sale,
Whole Loan Transfer or Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
may
be removed from this Agreement and reconstituted as part of an Agency Sale,
Securitization Transaction or Whole Loan Transfer pursuant to Section 9.01
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate.
11
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A "real
estate mortgage investment conduit" within the meaning of Section 860D of
the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the
Code,
and related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any month.
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price:
Unless
agreed otherwise by the Purchaser and the Company, a price equal to (i) the
Stated Principal Balance of the Mortgage Loan plus (ii) interest on such
Stated
Principal Balance at the Mortgage Loan Remittance Rate from the date on which
interest has last been paid and distributed to the Purchaser to the last
day of
the month in which the repurchase occurs, less amounts received or advanced
in
respect of such repurchased Mortgage Loan which are being held in the Custodial
Account for distribution in the month of repurchase.
Retained
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 6 through 9 of Exhibit C attached hereto, which
is
retained by the Company for the benefit of the Purchaser in a custodial capacity
only.
Second
Lien:
With
respect to a Mortgaged Property, a lien of the mortgage, deed of trust or
other
instrument securing a mortgage note which creates a second lien on the Mortgaged
Property.
12
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by the lien on the Mortgaged Property, subject to one
prior lien on such Mortgaged Property securing financing obtained by the
related
Mortgagor.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (a) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 9.01(d)(iii).
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses other
than Monthly Advances (including reasonable attorney's fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property, (d) compliance with the obligations under Section 4.08 (excluding
the Company’s obligation to pay the premiums on LPMI Policies) and (e) force
placing flood insurance in accordance with Section 4.10.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser
shall
pay to the Company, which shall, for a period of one full month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting
which
any related interest payment on a Mortgage Loan is received. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate:
The per
annum percentage for each Mortgage Loan, as indicated on the Mortgage Loan
Schedule attached to the respective Assignment and Conveyance
Agreement.
Servicing
File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 10 through 25 of Exhibit C attached hereto plus
copies
of all Mortgage Loan Documents contained in the Custodial Mortgage File and
the
Retained Mortgage File, which are retained by the Company.
13
Servicing
Officer:
Any
officer of the Company involved in or responsible for the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such
list
may from time to time be amended.
Special
Servicer:
Such
Person designated by the Purchaser to assume the servicing of Distressed
Mortgage Loans pursuant to Section 11.03.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date, whether or not received, minus (ii)
all
amounts previously distributed to the Purchaser with respect to the related
Mortgage Loan representing payments or recoveries of principal or advances
in
lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or
an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subsidy
Account:
An
account maintained by the Company specifically to hold all Subsidy Funds
to be
applied to individual Subsidy Loans.
Subsidy
Funds:
With
respect to any Subsidy Loans, funds contributed by the employer of a Mortgagor
in order to reduce the payments required from the Mortgagor for a specified
period in specified amounts.
Subsidy
Loan:
Any
Mortgage Loan subject to a temporary interest subsidy agreement pursuant
to
which the monthly interest payments made by the related Mortgagor will be
less
than the scheduled monthly interest payments on such Mortgage Loan, with
the
resulting difference in interest payments being provided by the employer
of the
Mortgagor. Each Subsidy Loan will be identified as such in the related Data
File.
14
Superior
Lien:
With
respect to any Second Lien Mortgage Loan, any other mortgage loan relating
to
the corresponding Mortgaged Property that creates a lien on the Mortgaged
Property that is senior to such Second Lien Mortgage Loan.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Time$aver®
Mortgage Loan:
A
Mortgage Loan which has been refinanced pursuant to a Company program that
allows a rate/term refinance of an existing Company serviced loan with minimal
documentation.
Transfer
Date:
The 18th
calendar day of each month, or, if such day is not a Business Day, the next
succeeding Business Day. Each transfer of servicing on a Transfer Date shall
be
deemed to be effective immediately following the close of business on such
Transfer Date.
Transfer
Notice:
A
certification by the Company listing the Distressed Mortgage Loans expected
to
be the subject of a servicing transfer on the related Transfer Date, based
on
information available as of the related Notice Date.
Underwriting
Guidelines:
The
underwriting guidelines of the Company which are applicable to the Mortgage
Loans in each Loan Package. A copy of the Underwriting Guidelines for each
Loan
Package shall be provided to the Purchaser prior to the respective Closing
Date.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to
a
third party, which sale or transfer is not a Securitization Transaction or
Agency Sale.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files;
Maintenance
of Retained Mortgage File and Servicing Files.
Pursuant
to each Assignment and Conveyance Agreement, on the related Closing Date,
the
Company, simultaneously with the payment of the Purchase Price by the Purchaser,
shall thereby sell, transfer, assign, set over and convey to the Purchaser,
without recourse, but subject to the terms of this Agreement and the related
Assignment and Conveyance Agreement, all the right, title and interest of
the
Company in and to the Mortgage Loans listed on the respective Mortgage Loan
Schedule annexed to such Assignment and Conveyance Agreement, together with
the
Retained Mortgage File and Custodial Mortgage File and all rights and
obligations arising under the documents contained therein. The Company shall
deliver the related Mortgage Loan Schedule and the related Data File to the
Purchaser at least two (2) Business Days before the respective Closing Date.
Pursuant to Section 2.03, the Company shall deliver the Custodial Mortgage
File
for each Mortgage Loan comprising the related Loan Package to the
Custodian.
15
The
contents of each Retained Mortgage File not delivered to the Custodian are
and
shall be held in trust by the Company for the benefit of the Purchaser as
the
owner thereof. Additionally and separate to the Retained Mortgage File, the
Company shall maintain a Servicing File, for the sole purpose of servicing
the
related Mortgage Loans, consisting of a copy of the contents of the Custodial
Mortgage File and the Retained Mortgage File. The possession of each Servicing
File and Retained Mortgage File held by the Company is at the will of the
Purchaser and such retention and possession by the Company is in a custodial
capacity only. Upon the sale of the Mortgage Loans the ownership of each
Mortgage Note, the related Mortgage and the related Custodial Mortgage File,
Retained Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only
in
such custodial capacity. The Company shall release its custody of the contents
of any Retained Mortgage File and 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, in the case of the Servicing
File, or is in connection with a repurchase of any Mortgage Loan pursuant
to
Section 3.03 or 6.02. All such costs associated with the release, transfer
and
re-delivery to the Company shall be the responsibility of the
Purchaser.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause the MERS System to indicate that such Mortgage
Loan has been assigned by the Company to the Purchaser in accordance with
this
Agreement by including (or deleting, in the case of a Mortgage Loan repurchased
in accordance with this Agreement) in such computer files the information
required by the MERS System to identify the Purchaser as the beneficial owner
of
such Mortgage Loan.
Section
2.02 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale to the Purchaser of the Mortgage Loans in the related Loan
Package on each Closing Date, all rights arising out of the Mortgage Loans,
including, but not limited to, all funds received on or in connection with
the
Mortgage Loans, shall be received and held by the Company in trust for the
benefit of the Purchaser as owner of the Mortgage Loans, and the Company
shall
retain record title to the related Mortgages for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The
sale
of each Mortgage Loan shall be reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations,
and
requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Mae or Xxxxxxx Mac and
records
of periodic inspections as required by Section 4.13. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Company may be in the
form of
microfilm or microfiche or such other reliable means of recreating original
documents, including but not limited to, optical imagery techniques so long
as
the Company complies with the requirements of the Xxxxxx Mae or Xxxxxxx Mac
Selling and Servicing Guide, as amended from time to time.
16
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Retained
Mortgage File and Servicing File during the time the Purchaser retains ownership
of such Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of
this
Agreement, the Company shall be under no obligation to deal with any Person
with
respect to this Agreement or the Mortgage Loans unless the books and records
show such Person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Company of the transfer. Upon
receipt
of notice of the transfer, the Company shall xxxx its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred. Such notification of a transfer shall
include a final loan schedule which shall be received by the Company no fewer
than five (5) Business Days before the last Business Day of the month. If
such
notification is not received as specified above, the Company’s duties to remit
and report as required by Section 5 shall begin with the next Due
Period.
Section
2.03 Custodial
Agreement; Delivery of Documents.
On
each
Closing Date with respect to each Mortgage Loan comprising the related Loan
Package, the Company shall have delivered to the Custodian those Mortgage
Loan
Documents contained in the related Custodial Mortgage File as required by
this
Agreement with respect to each Mortgage Loan.
The
Custodian has certified its receipt of all such Mortgage Loan Documents in
each
Custodial Mortgage File required to be delivered pursuant to this Agreement,
as
evidenced by the trust receipt and initial certification of the Custodian
in the
form annexed to the Custodial Agreement. The Company shall be responsible
for
recording the initial Assignments of Mortgage. The Purchaser will be responsible
for the fees and expenses of its Custodian.
17
Upon
the
occurrence of the events described in Section 9.01 and Section 11.02 of this
Agreement or in the event the Company fails to allow the Purchaser access
to the
Retained Mortgage File as required pursuant to Section 2.04 (each such
occurrence, a “Delivery Event”), the Company shall deliver to the Custodian or
any other party per written instructions from the Purchaser, the additional
documents from its Retained Mortgage File required to be delivered pursuant
to
Section 9.01 herein within ten (10) Business Days. All of the provisions
of this
Section 2.03 relating to a failure to deliver required documentation, delays
in
such delivery and the delivery of defective documentation shall apply equally
to
any obligation on the part of the Company to deliver documents which arises
after the Closing Date upon the occurrence of a Delivery Event.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one (1) week
of
their execution, provided, however, that the Company shall provide the Custodian
with a certified true copy of any such document submitted for recordation
within
ten (10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty (60) days of its submission for recordation.
In
the
event the public recording office is delayed in returning any original document,
which the Company is required to deliver at any time to the Custodian in
accordance with the terms of the Custodial Agreement or which the Company
is
required to maintain in the Retained Mortgage File, the Company shall deliver
to
the Custodian within 180 days of its submission for recordation, a copy of
such
document and an Officer's Certificate, which shall (i) identify the recorded
document; (ii) state that the recorded document has not been delivered to
the
Custodian due solely to a delay by the public recording office, (iii) state
the
amount of time generally required by the applicable recording office to record
and return a document submitted for recordation, and (iv) specify the date
the
applicable recorded document will be delivered to the Custodian. The Company
will be required to deliver the document to the Custodian by the date specified
in (iv) above. An extension of the date specified in (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably
withheld.
In
the
event that new, replacement, substitute or additional Stock Certificates
are
issued with respect to existing Cooperative Shares, the Company immediately
shall deliver to the Custodian the new Stock Certificates, together with
the
related Stock Powers in blank. Such new Stock Certificates shall be subject
to
the related Pledge Instruments and shall be subject to all of the terms,
covenants and conditions of this Agreement.
Section
2.04 Examination
of Mortgage Loan Documents.
18
Prior
to
the related Closing Date, the Company shall deliver the Mortgage Loan Documents
included in the Custodial Mortgage File to the Custodian. The Purchaser or
a
designee may review such Mortgage Loan Documents to verify that the documents
required to be included in each Custodial Mortgage File are available. If
a
Custodial Mortgage File is incomplete or defective or a Mortgage Loan does
not
conform to the requirements of this Agreement and such omission or defects
cannot be cured prior to the Closing Date, the Mortgage Loan shall be deleted
from the Mortgage Loan Schedule. If deleted, the Mortgage Loan may be replaced,
up to one (1) Business Day prior to the Closing Date, by one or more substitute
Mortgage Loans which satisfy the criteria set forth in this
Agreement.
The
Company shall make the Retained Mortgage File available to the Purchaser
for
examination at the Company’s offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Company. Such examination may be
made by
the Purchaser at any time before or after such Closing Date or by any
prospective purchaser of the Mortgage Loans from the Purchaser, at any time
after the Closing Date upon prior written notice to the Company. The fact
that
the Purchaser or any prospective purchaser of the Mortgage Loans has conducted
or has failed to conduct any partial or complete examination of the Retained
Mortgage File shall not affect the Purchaser’s (or any of its successor’s)
rights to demand repurchase, substitution or other relief as provided under
this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.01 Company
Representations and Warranties.
The
Company hereby represents and warrants to the Purchaser that, as of the related
Closing Date:
|
(a)
|
Due
Organization and Authority.
|
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States and has
all
licenses necessary to carry on its business as now being conducted
and is
licensed, qualified and in good standing in each state where a
Mortgaged
Property is located if the laws of such state require licensing
or
qualification in order to conduct business of the type conducted
by the
Company, and in any event the Company is in compliance with the
laws of
any such state to the extent necessary to ensure the enforceability
of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Company has the
full
power and authority to execute and deliver this Agreement and to
perform
in accordance herewith; the execution, delivery and performance
of this
Agreement (including all instruments of transfer to be delivered
pursuant
to this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this
Agreement
evidences the valid, binding and enforceable obligation of the
Company;
and all requisite action has been taken by the Company to make
this
Agreement valid and binding upon the Company in accordance with
its
terms;
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19
|
(b)
|
Ordinary
Course of Business.
|
|
The
consummation of the transactions contemplated by this Agreement
are in the
ordinary course of business of the Company, who is in the business
of
selling and servicing loans, and the transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Company pursuant
to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable
jurisdiction;
|
|
(c)
|
No
Conflicts.
|
|
Neither
the execution and delivery of this Agreement, the acquisition of
the
Mortgage Loans by the Company, the sale of the Mortgage Loans to
the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of
or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles
of
incorporation or by-laws or any legal restriction or any agreement
or
instrument to which the Company is now a party or by which it is
bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property
is subject, or impair the ability of the Purchaser to realize on
the
Mortgage Loans, or impair the value of the Mortgage
Loans;
|
|
(d)
|
Ability
to Service.
|
|
The
Company is an approved seller/servicer of conventional residential
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing
of
mortgage loans of the same type as the Mortgage Loans. The Company
is in
good standing to sell mortgage loans to and service mortgage loans
for
Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including
but not
limited to a change in insurance coverage, which would make the
Company
unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements
or which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac;
|
|
(e)
|
Reasonable
Servicing Fee.
|
|
The
Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the
entire
Servicing Fee shall be treated by the Company, for accounting and
tax
purposes, as compensation for the servicing and administration
of the
Mortgage Loans pursuant to this
Agreement;
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20
|
(f)
|
Ability
to Perform.
|
|
The
Company does not believe, nor does it have any reason or cause
to believe,
that it cannot perform each and every covenant contained in this
Agreement. The Company is solvent and the sale of the Mortgage
Loans will
not cause the Company to become insolvent. The sale of the Mortgage
Loans
is not undertaken to hinder, delay or defraud any of the Company's
creditors;
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|
(g)
|
No
Litigation Pending.
|
|
There
is no action, suit, proceeding or investigation pending or threatened
against the Company which, either in any one instance or in the
aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company, or in
any
material impairment of the right or ability of the Company to carry
on its
business substantially as now conducted, or in any material liability
on
the part of the Company, or which would draw into question the
validity of
this Agreement or the Mortgage Loans or of any action taken or
to be
contemplated herein, or which would be likely to impair materially
the
ability of the Company to perform under the terms of this
Agreement;
|
|
(h)
|
No
Consent Required.
|
|
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
the Company of or compliance by the Company with this Agreement
or the
sale of the Mortgage Loans as evidenced by the consummation of
the
transactions contemplated by this Agreement, or if required, such
approval
has been obtained prior to the related Closing
Date;
|
|
(i)
|
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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|
(j)
|
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;
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|
(k)
|
No
Material Change.
|
21
|
There
has been no material adverse change in the business, operations,
financial
condition or assets of the Company since the date of the Company’s most
recent financial statements;
|
|
(l)
|
No
Brokers’ Fees.
|
|
The
Company has not dealt with any broker, investment banker, agent
or other
Person that may be entitled to any commission or compensation in
the
connection with the sale of the Mortgage Loans;
|
|
(m)
|
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
of
the Mortgage Loans;
| (n) |
Low
Income Borrowers.
|
The
Company currently operates and actively participates in an on-going business
(i)
to originate single family mortgage loans and/or (ii) to make periodic purchases
of mortgage loans from originators or sellers, and/or (iii) to issue and/or
purchase securities or bonds supported by mortgage loans, a portion of which
mortgage loans are made to borrowers who are:
(A) low
income families (families with incomes 80% or less of area median income)
living
in low-income areas (a census tract or block numbering area in which the
median
income does not exceed 80% of the area median income); or
(B) very
low
income families (families with incomes 60% or less of area median income);
and
| (o) |
MERS.
|
The
Company is a member of MERS in good standing.
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the related Closing Date:
|
(a)
|
Mortgage
Loans as Described.
|
22
|
The
information set forth in the respective Mortgage Loan Schedule
and the
information contained on the respective Data File delivered to
the
Purchaser is true and correct;
|
|
(b)
|
Payments
Current.
|
|
No
payment required under any Mortgage Loan will be thirty (30) days
or more
delinquent on the related Closing Date. No Mortgage Loan will have
been
thirty (30) days delinquent more than once during the twelve (12)
months
preceding such Closing Date;
|
|
(c)
|
No
Outstanding Charges.
|
|
There
are no defaults in complying with the terms of the Mortgages, and
all
taxes, governmental assessments, insurance premiums, leasehold
payments,
water, sewer and municipal charges, which previously became due
and owing
have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and
which has
been assessed but is not yet due and payable. The Company has not
advanced
funds, or induced, or solicited directly or indirectly, the payment
of any
amount required under the Mortgage Loan, except for interest accruing
from
the date of the Mortgage Note or date of disbursement of the Mortgage
Loan
proceeds, whichever is later, to the day which precedes by one
(1) 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 the Mortgage Note has been delivered to the Custodian.
The
substance of any such waiver, alteration or modification has been
approved
by the issuer of any related PMI Policy and the title insurer,
to the
extent required by the policy, and its terms are reflected on the
related
Mortgage Loan Schedule. No Mortgagor has been released, in whole
or in
part, except in connection with an assumption agreement approved
by the
issuer of any related PMI Policy and the title insurer, to the
extent
required by the policy, and which assumption agreement is part
of the
Custodial Mortgage File delivered to the Custodian and the terms
of which
are reflected in the respective Mortgage Loan
Schedule;
|
|
(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;
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23
|
(f)
|
No
Satisfaction of Mortgage.
|
|
Neither
the Mortgage nor the Mortgage Note has been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged
Property
has not been released from the respective lien of the Mortgage,
in whole
or in part, nor has any instrument been executed that would effect
any
such release, cancellation, subordination or
rescission;
|
|
(g)
|
Validity
of Mortgage Documents.
|
|
The
Mortgage Note and the Mortgage and related documents are genuine,
and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the Mortgage
Note, the Mortgage and any other related document had legal capacity
to
enter into the Mortgage Loan and to execute and deliver the Mortgage
Note,
the Mortgage and any other related document, and the Mortgage Note,
the
Mortgage and any other related document have been duly and properly
executed by such parties. The Company has reviewed all of the documents
constituting the Retained Mortgage File and Custodial Mortgage
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 Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and
to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
| (h) |
No
Fraud.
|
|
All
the documents executed in connection with the Mortgage Loan including,
but
not limited to, the Mortgage Note and the Mortgage are free of
fraud and
any misrepresentation, are signed by the persons they purport to
be signed
by, and witnessed or, as appropriate, notarized by the persons
whose
signatures appear as witnesses or notaries, and each such document
constitutes the valid and binding legal obligation of the signatories
and
is enforceable in accordance with its
terms;
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24
|
(i)
|
Compliance
with Applicable Laws.
|
|
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection and privacy, equal credit opportunity,
disclosure, or predatory and abusive lending laws applicable to
the
Mortgage Loan have been complied with, and the Company shall maintain
in
its possession, available for the Purchaser's inspection, and shall
deliver to the Purchaser upon demand, evidence of compliance with
all such
requirements. The consummation of the transactions contemplated
hereby
will not violate any such laws or regulations. All inspections,
licenses
and certificates required to be made or issued with respect to
all
occupied portions of the Mortgaged Property and, with respect to
the use
and occupancy of the same, including, but not limited to, certificates
of
occupancy and fire underwriting certificates, have been made or
obtained
from the appropriate authorities;
|
|
(j)
|
Location
and Type of Mortgaged Property.
|
|
The
Mortgaged Property is located in the state identified in the respective
Mortgage Loan Schedule and consists of a contiguous parcel of real
property with a detached single family residence erected thereon,
or a
two- to four-family dwelling, or a Cooperative Apartment, or manufactured
housing or an individual condominium unit in a condominium project,
or an
individual unit in a planned unit development or a townhouse and
no
residence or dwelling is a mobile home. As of the respective appraisal
date for each Mortgaged Property, no portion of the Mortgaged Property
was
being used for commercial purposes, except as allowed under the
Underwriting Guidelines. 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 meets
the
requirements under the Underwriting
Guidelines;
|
(k) Valid
First Lien.
|
Each
First Lien Mortgage Loan is a valid, subsisting and enforceable
First Lien
on the Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made
at any
time with respect to the foregoing. The lien of the Mortgage is
subject
only to:
|
|
(1)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
|
(2)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender's title insurance policy delivered to the originator of
the
Mortgage Loan and (i) referred to or otherwise considered in the
appraisal
made for the originator of the Mortgage Loan and (ii) which do
not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
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25
|
(3)
|
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
|
Any
security agreement, chattel mortgage or equivalent document related
to and
delivered in connection with each First Lien Mortgage Loan establishes
and
creates a valid, subsisting and enforceable First Lien and first
priority
security interest on the property described therein and the Company
has
full right to sell and assign the same to the Purchaser;
|
| (l) |
Full
Disbursement of Proceeds.
|
|
The
Mortgage Loan has been closed and the proceeds of the Mortgage
Loan have
been fully disbursed, except for Mortgage Loans with escrow holdbacks
established or created due to seasonal weather conditions, as allowed
under the Underwriting Guidelines, and there is no requirement
for future
advances thereunder. All costs, fees and expenses incurred in making
or
closing the Mortgage Loan and the recording of the Mortgage were
paid, and
the Mortgagor is not entitled to any refund of any amounts paid
or due
under the Mortgage Note or
Mortgage;
|
|
(m)
|
Consolidation
of Future Advances.
|
|
Any
future advances made prior to the Cut-off Date, have been consolidated
with the outstanding principal amount secured by the Mortgage,
and the
secured principal amount, as consolidated, bears a single interest
rate
and single repayment term reflected on the related Mortgage Loan
Schedule.
The lien of the Mortgage securing the consolidated principal amount
is
expressly insured as having first lien priority (or second lien
priority
for each Mortgage Loan identified on the such Mortgage Loan Schedule
as
being a Second Lien Mortgage Loan) by a title insurance policy,
an
endorsement to the policy insuring the mortgagee’s consolidated interest
or by other title evidence acceptable to Xxxxxx Mae or Xxxxxxx
Mac; the
consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan; the Company shall not make future
advances
after the Cut-off Date;
|
| (n) |
Ownership.
|
26
|
The
Company is the sole owner of record and holder of the Mortgage
Loan and
the related Mortgage Note and the Mortgage are not assigned or
pledged,
and the Company has good and marketable title thereto and has full
right
and authority to transfer and sell the Mortgage Loan to the Purchaser.
The
Company is transferring the Mortgage Loan free and clear of any
and all
encumbrances, liens, pledges, equities, participation interests,
claims,
charges or security interests of any nature encumbering such Mortgage
Loan;
|
| (o) |
Origination/Doing
Business.
|
|
The
Mortgage Loan was originated by a savings and loan association,
a savings
bank, a commercial bank, a credit union, an insurance company,
or similar
institution that is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing
and
Urban Development pursuant to Sections 203 and 211 of the National
Housing
Act. All parties which have had any interest in the Mortgage Loan,
whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the
period
in which they held and disposed of such interest, were) (1) in
compliance
with any and all applicable licensing requirements of the laws
of the
state wherein the Mortgaged Property is located, and (2) organized
under
the laws of such state, or (3) qualified to do business in such
state, or
(4) federal savings and loan associations or national banks having
principal offices in such state, or (5) not doing business in such
state;
|
|
(p)
|
Title
Insurance.
|
|
The
Mortgage Loan is covered by an ALTA lender's title insurance policy
(or in
the case of any Mortgage Loan secured by a Mortgaged Property located
in a
jurisdiction where such policies are generally not available, an
opinion
of counsel of the type customarily rendered in such jurisdiction
in lieu
of title insurance and acceptable to Xxxxxx Xxx or Xxxxxxx Mac)
or other
generally acceptable form of policy of insurance acceptable to
Xxxxxx Mae
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 (or second priority if such
Mortgage Loan is a Second Lien Mortgage Loan) of the Mortgage in
the
original principal amount of the Mortgage Loan, subject only to
the
exceptions contained in clauses (1), (2) and (3) of paragraph (k)
of this
Section 3.02, and against any loss by reason of the invalidity
or
unenforceability of the lien resulting from the provisions of the
Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. The Company is the sole insured of such lender's title
insurance
policy, and such lender's title insurance policy is in full force
and
effect and will be in force and effect upon the consummation of
the
transactions contemplated by this Agreement. No claims have been
made
under such lender's title insurance policy, and no prior holder
of the
Mortgage, including the Company, has done, by act or omission,
anything
which would impair the coverage of such lender's title insurance
policy;
|
27
|
(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
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;
|
|
(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 which are not insured against by the title
insurance policy referenced in paragraph (p)
above;
|
|
(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 and except as insured
against
by the title insurance policy referenced in paragraph (p) above,
no
improvements on adjoining properties encroach upon the Mortgaged
Property.
No improvement located on or being part of the Mortgaged Property
is in
violation of any applicable zoning law or
regulation;
|
|
(t)
|
Payment
Terms.
|
Principal
payments commenced no more than sixty (60) days after the funds were disbursed
to the Mortgagor in connection with the Mortgage Loan. Each Mortgage Loan
is
payable in equal monthly installments of principal and interest, with interest
calculated and payable in arrears, sufficient (except with respect to Balloon
Loans and Interest Only Mortgage Loans) to amortize the Mortgage Loan fully
by
the stated maturity date set for in the Mortgage Note over an original term
to
maturity of not more than thirty (30) years. With
respect to each Balloon Loan, the Mortgage Loan is payable in equal monthly
installments of principal and interest based on a fifteen (15) or thirty
(30)
year amortization schedule, as set forth in the related Mortgage Note, and
a
final lump sum payment substantially greater than the preceding Monthly Payment
is required which is sufficient to amortize the remaining principal balance
of
the Balloon Loan. As
to
each Adjustable Rate Mortgage Loan on each applicable Adjustment Date, the
Mortgage Interest Rate will be adjusted to equal the sum of the Index plus
the
applicable Gross Margin, rounded up or down to the nearest multiple of 0.125%
indicated by the Mortgage Note; provided that the Mortgage Interest Rate
will
not increase or decrease by more than the Periodic Interest Rate Cap on any
Adjustment Date, and will in no event exceed the maximum Mortgage Interest
Rate
or be lower than the minimum Mortgage Interest Rate listed on the Mortgage
Note.
As
to each Adjustable Rate Mortgage Loan that is not an Interest Only Mortgage
Loan, each
Mortgage Note requires a monthly payment which is sufficient, during the
period
prior to the first adjustment to the Mortgage Interest Rate, to fully amortize
the outstanding principal balance as of the first day of such period over
the
then remaining term of such Mortgage Note and to pay interest at the related
Mortgage Interest Rate. As to each Adjustable Rate Mortgage Loan, if the
related
Mortgage Interest Rate changes on an Adjustment Date, with
respect to an Interest Only Mortgage Loan, on an Adjustment Date following
the
related interest only period, the
then
outstanding principal balance will be reamortized over the remaining life
of
such Mortgage Loan. No Mortgage Loan contains terms or provisions which would
result in negative amortization;
28
|
(u)
|
Customary
Provisions.
|
|
The
Mortgage and related Mortgage Note contain customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof
adequate for the realization against the Mortgaged Property of
the
benefits of the security provided thereby, including, (i) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(ii)
otherwise by judicial foreclosure and upon the exercise of such
rights and
remedies under the law, the holder of the Mortgage and Mortgage
Note 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)
|
Occupancy
of the Mortgaged Property.
|
|
As
of the date of origination, the Mortgaged Property was lawfully
occupied
under applicable law;
|
|
(w)
|
No
Additional Collateral.
|
|
The
Mortgage Note is not and has not been secured by any collateral,
pledged
account or other security except the lien of the corresponding
Mortgage
and the security interest of any applicable security agreement
or chattel
mortgage referred to in paragraphs (k) and
(zz);
|
|
(x)
|
Deeds
of Trust.
|
29
|
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Mortgagee to
the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the
Mortgagor;
|
|
(y)
|
Transfer
of Mortgage Loans.
|
|
If
the Mortgage Loan is not a MERS Mortgage Loan, the Assignment of
Mortgage
upon the insertion of the name of the assignee and recording information
is in recordable form and is acceptable for recording under the
laws of
the jurisdiction in which the Mortgaged Property is
located;
|
|
(z)
|
Mortgaged
Property Undamaged.
|
|
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to
affect
adversely the value of the Mortgaged Property as security for the
Mortgage
Loan or the use for which the premises were
intended;
|
|
(aa)
|
Collection
Practices; Escrow Deposits.
|
|
The
origination and collection practices used with respect to the Mortgage
Loan have been in accordance with Accepted Servicing Practices,
and have
been in all material respects legal and proper. With respect to
escrow
deposits and Escrow Payments, all such payments are in the possession
of
the Company and there exist no deficiencies in connection therewith
for
which customary arrangements for repayment thereof have not been
made. All
Escrow Payments have been collected in full compliance with state
and
federal law. No escrow deposits or Escrow Payments or other charges
or
payments due the Company have been capitalized under the Mortgage
Note;
|
|
(bb)
|
No
Condemnation.
|
|
There
is no proceeding pending or to the best of the Company’s knowledge
threatened for the total or partial condemnation of the related
Mortgaged
Property;
|
|
(cc)
|
The
Appraisal.
|
|
The
Mortgage Loan Documents contains an appraisal of the related Mortgaged
Property by an appraiser who is licensed in the state where the
Mortgaged
Property is located, and who had no interest, direct or indirect,
in the
Mortgaged Property or in any loan made on the security thereof;
and whose
compensation is not affected by the approval or disapproval of
the
Mortgage Loan, and the appraisal and the appraiser both satisfy
the
applicable requirements of Title XI of the Financial Institution
Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
|
30
|
(dd)
|
Insurance.
|
|
The
Mortgaged Property securing each Mortgage Loan is insured by an
insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire and
such
hazards as are covered under a standard extended coverage endorsement
and
such other hazards as are customary in the area where the Mortgaged
Property is located pursuant to insurance policies conforming to
the
requirements of Section 4.10, in an amount which is at least equal
to the
lesser of (a) 100% of the insurable value, on a replacement cost
basis, of
the improvements on the related Mortgaged Property, or (b) the
greater of
(i) either (1) the outstanding principal balance of the Mortgage
Loan with
respect to each First Lien Mortgage Loan or (2) with respect to
each
Second Lien Mortgage Loan, the sum of the outstanding principal
balance of
the First Lien on such Mortgage Loan and the outstanding principal
balance
of such Second Lien Mortgage Loan, or (ii) an amount such that
the
proceeds of such insurance shall be sufficient to avoid the application
to
the Mortgagor or loss payee of any coinsurance clause under the
policy. If
the Mortgaged Property is a condominium unit, it is included under
the
coverage afforded by a blanket policy for the project. If the improvements
on the Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is in
effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (A) the outstanding principal
balance of the Mortgage Loan, (B) the full insurable value and
(C) the maximum amount of insurance which was available under the
Flood Disaster Protection Act of 1973, as amended. All individual
insurance policies contain a standard mortgagee clause naming the
Company
and its successors and assigns as mortgagee, and all premiums thereon
have
been paid. The Mortgage obligates the Mortgagor thereunder to maintain
a
hazard insurance policy at the Mortgagor's cost and expense, and
on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage
to
obtain and maintain such insurance at such Mortgagor's cost and
expense,
and to seek reimbursement therefor from the Mortgagor. The hazard
insurance policy is the valid and binding obligation of the insurer,
is in
full force and effect, and will be in full force and effect and
inure to
the benefit of the Purchaser upon the consummation of the transactions
contemplated by this Agreement. The Company has not acted or failed
to act
so as to impair the coverage of any such insurance policy or the
validity,
binding effect and enforceability
thereof;
|
|
(ee)
|
Servicemembers
Civil Relief Act.
|
31
|
The
Mortgagor has not notified the Company, and the Company has no
knowledge
of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act, as
amended;
|
|
(ff)
|
No
Graduated Payments, Contingent Interests.
|
|
The
Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage
Loan does not have a shared appreciation or other contingent interest
feature. 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
any one on
behalf of the Mortgagor, or paid by any source other than the
Mortgagor;
|
|
(gg)
|
No
Construction Loans.
|
|
No
Mortgage Loan was made in connection with (i) the construction
or
rehabilitation of a Mortgage Property or (ii) facilitating the
trade-in or
exchange of a Mortgaged Property other than a construction-to-permanent
loan which has converted to a permanent Mortgage
Loan;
|
|
(hh)
|
Underwriting.
|
|
Each
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines and the Mortgage Note and Mortgage are on forms acceptable
to
Xxxxxxx Mac or Xxxxxx Xxx;
|
|
(ii)
|
Bankruptcy.
|
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding as of the date the Mortgage Loan was closed and the
proceeds of
the Mortgage Loan were distributed;
|
|
(jj)
|
Leasehold
Estates.
|
|
With
respect to Mortgage Loans that are secured by a leasehold estate,
the
lease is valid, in full force and effect, and conforms to the Underwriting
Guidelines for leasehold estates;
|
|
(kk)
|
Due
on Sale.
|
The
Mortgage or Mortgage Note contains an enforceable provision, to the extent
not
prohibited by federal law, 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;
32
|
(ll)
|
The
Mortgagor.
|
The
Mortgagor is one or more natural persons and/or an Illinois land trust or
a
“living trust” and such “living trust” is in compliance with the Underwriting
Guidelines;
|
(mm)
|
Single
Premium Credit Life Insurance.
|
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.
life, disability, accident, unemployment or health insurance product) as
part of
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan;
|
(nn)
|
Recordation.
|
Each
original Mortgage has been, or is in the process of being duly recorded in
the
appropriate recording office, and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded,
are in
the process of being recorded or will be recorded (in the event the original
mortgage has not been returned by the applicable recording office), in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
respective lien thereof as against creditors of the Company;
|
(oo)
|
No
Violation of Environmental Laws.
|
There
is
no pending action or proceeding directly involving any Mortgaged Property
of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; and to the best of the Company’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each such
law,
rule or regulation constituting a prerequisite to use, value and enjoyment
of
said property;
|
(pp)
|
Primary
Mortgage Insurance.
|
Each
Mortgage Loan has an LTV or CLTV as set forth on the related Mortgage Loan
Schedule. Except as set forth on such Mortgage Loan Schedule, each First
Lien
Mortgage Loan with an LTV of greater than 80% at the time of origination,
a
portion of the unpaid principal balance of the Mortgage Loan is and will
be
insured as to payment defaults by a PMI Policy. If the First Lien Mortgage
Loan
is insured by a PMI Policy which is not an LPMI Policy, the coverage will
remain
in place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC §4901, et
seq. All provisions of such PMI Policy or LPMI Policy have been and are being
complied with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. The Qualified Insurer has a claims paying ability
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. Any Mortgage Loan subject to a PMI
Policy other than an LPMI Policy obligates the Mortgagor to maintain the
PMI
Policy other than an LPMI Policy and to pay all premiums and charges in
connection therewith;
33
|
(qq)
|
Servicing.
|
From
and
after the date of origination, each Mortgage Loan has been serviced in
accordance with the terms of all federal, state and local laws and regulations,
the terms of the Mortgage Note and Accepted Servicing Practices in all
respects;
|
(rr)
|
No
High Cost Loans.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
|
(ss)
|
Delivery
of Custodial Mortgage Files.
|
The
Mortgage Note and any other documents required to be delivered by the Company
under this Agreement for the Mortgage Loans have been delivered to the
Custodian. The Company is in possession of a complete, true and accurate
Retained Mortgage File in compliance with Exhibit C, except for such documents
where the originals of which have been sent for recordation;
|
(tt)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has furnished complete information
on
the related borrower credit files to Equifax, Experian and Trans Union Credit
Information Company, in accordance with the Fair Credit Reporting Act and
its
implementing regulations;
|
(uu)
|
Anti-Money
Laundering Laws.
|
The
Company has complied with all applicable anti-money laundering laws and
regulations, (the "Anti-Money Laundering Laws"), and has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws;
|
(vv)
|
Contents
of the Retained Mortgage File.
|
The
Retained Mortgage File contains the documents listed as items 6 through 9
of
Exhibit C attached hereto;
34
|
(ww)
|
Texas
Refinance Mortgage Loans.
|
Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance
Code;
|
(xx)
|
Prepayment
Penalty.
|
With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each
such
prepayment penalty shall be enforceable and will be enforced by the Company
for
the benefit of the Purchaser, and each Prepayment Penalty shall be permitted
pursuant to federal, state and local law. Each such Prepayment Penalty is
in an
amount equal to the maximum amount permitted under applicable law and no
such
Prepayment Penalty may be imposed for a term in excess of five (5) years
with
respect to Mortgage Loans originated on or after October 1, 2002;
|
(yy)
|
No
Arbitration.
|
No
borrower with respect to any Mortgage Loan originated on or after August
1,
2004, agreed to submit to arbitration to resolve any dispute arising out
of or
relating in any way to the Mortgage Loan transaction;
|
(zz)
|
Valid
Second Lien.
|
With
respect to any Second Lien Mortgage Loan, such Mortgage is a valid, subsisting
and enforceable 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. The lien of such Mortgage is subject only
to:
|
(i)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
|
(ii)
|
superior
position mortgage lien(s) acceptable in accordance with the Underwriting
Guidelines;
|
|
(iii)
|
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 in accordance with Accepted Servicing Practices
and
(i) referred to or otherwise considered in the appraisal and (ii)
which do
not adversely affect the Appraised Value;
and
|
35
|
(iv)
|
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 such Mortgage Loan establishes and creates a
valid,
subsisting, and enforceable Second Lien and second lien security interest
on the
property described therein and the Company has full right to sell and assign
the
same to the Purchaser. With respect to each Second Lien Mortgage Loan: (a)
the
First Lien is in full force and effect, (b) there is no default, breach,
violation or event of acceleration existing under such First Lien Mortgage
or
the related Mortgage Note, (c) if the related First Lien Mortgage Loan provides
for negative amortization, the LTV was calculated at the maximum principal
balance of such First Lien that could result upon application of such negative
amortization feature, (d) either no consent for the Second Lien Mortgage Loan
is
required by the holder of the First Lien or such consent has been obtained
and
is contained in the Mortgage Loan Documents and (e) to the best of Company’s
knowledge, 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 or acceleration under the related First Lien Mortgage
Loan;
|
(aaa)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
|
(i)
|
The
Cooperative Shares are held by a person as a tenant-stockholder
in a
Cooperative. Each original UCC financing statement, continuation
statement
or other governmental filing or recordation necessary to create
or
preserve the perfection and priority of the first lien and security
interest in the Cooperative Loan and Proprietary Lease has been
timely and
properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser
or its
designee establishes in Purchaser a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described
therein,
and Purchaser has full right to sell and assign the same. The Proprietary
Lease term expires no less than five (5) years after the Mortgage
Loan
term or such other term acceptable to Xxxxxx Xxx or Xxxxxxx
Mac;
|
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent to
make the
same which company is acceptable to Xxxxxx Mae or Xxxxxxx Mac and
qualified to do business in the jurisdiction where the Cooperative
is
located;
|
36
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the
terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
210 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and owns
the
Project either in fee simple or under a leasehold that complies
with the
requirements of the Xxxxxx Mae guidelines, Xxxxxxx Mac guidelines
or the
Underwriting Guidelines; such title is free and clear of any adverse
liens
or encumbrances, except the lien of any blanket
mortgage;
|
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
|
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related Cooperative
Loan;
|
| (bbb) |
BuydownMortgage
Loans.
|
|
With
respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
|
|
(i)
|
On
or before the date of origination of such Mortgage Loan, the Company
and
the Mortgagor, or the Company, the Mortgagor and the seller of
the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments that,
when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due on
such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor
to qualify
for the Buydown Mortgage Loan. The effective interest rate of a
Buydown
Mortgage Loan if less than the interest rate set forth in the related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate will
be
equal to the interest rate as set forth in the related Mortgage
Note. The
Buydown Mortgage Loan satisfies the requirements of Xxxxxx Mae
guidelines,
Xxxxxxx Mac guidelines or the Underwriting
Guidelines;
|
37
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms
rather than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the Monthly
Payment
on any Due Date that the Buydown Funds are available. The Buydown
Funds
were not used to reduce the original principal balance of the Mortgage
Loan or to increase the Appraised Value of the Mortgage Property
when
calculating the Loan-to-Value Ratios for purposes of the Agreement
and, if
the Buydown Funds were provided by the Company and if required
under
Xxxxxx Mae guidelines, Xxxxxxx Mac guidelines or the Underwriting
Guidelines, the terms of the Buydown Agreement were disclosed to
the
appraiser of the Mortgaged
Property;
|
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a principal payment for the outstanding balance of the Mortgage
Loan;
|
|
(iv)
|
As
of the date of origination of the Mortgage Loan, the provisions
of the
related Buydown Agreement complied with the Xxxxxx Mae guidelines,
Xxxxxxx
Mac guidelines or the Underwriting Guidelines regarding buydown
agreements;
and
|
|
(ccc)
|
Indiana.
|
There
is
no Mortgage Loan that was originated on or after January 1, 2005, which is
a
“high cost home loan” as defined under the Indiana Home Loan Practices Act (I.C.
24-9).
Section
3.03 Repurchase.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the applicable Mortgage Loan Documents to the
Custodian and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Custodial Mortgage
File or
Retained Mortgage File. Upon discovery by either the Company or the Purchaser
of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the value of the Mortgage Loans or the interest of
the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan) (in the case of any of the foregoing,
a
"Breach"), the party discovering such Breach shall give prompt written notice
to
the other.
38
Within
sixty (60) days of the earlier of either discovery by or notice to the Company
of any Breach of a representation or warranty which materially and adversely
affects the value of the Mortgage Loans, the Company shall use its best efforts
promptly to cure such Breach in all material respects (although, in connection
with such a breach of Section 3.02(tt), the cure period shall be fifteen
(15)
days) and, if such Breach cannot be cured, the Company shall, at the Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. In the event
that
a Breach shall involve any representation or warranty set forth in Section
3.01,
and such Breach cannot be cured within sixty (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. However, if the Breach shall involve a representation or
warranty set forth in Section 3.02 and the Company discovers or receives
notice
of any such Breach within one hundred twenty (120) days of the related Closing
Date, the Company shall, if the Breach cannot be cured, at the Purchaser's
option and provided that the Company has a Qualified Substitute Mortgage
Loan,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans, provided that any such substitution shall
be
effected not later than one hundred twenty (120) days after the related Closing
Date. If the Company has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan within sixty (60) days of the written
notice of the Breach or the failure to cure, whichever is later. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this
Section
3.03 shall be accomplished by deposit in the Custodial Account of the amount
of
the Repurchase Price for distribution to Purchaser on the Remittance Date
immediately following the Principal Prepayment Period in which such repurchase
takes place, after deducting therefrom any amount received in respect of
such
repurchased Mortgage Loan or Loans and being held in the Custodial Account
for
future distribution.
At
the
time of repurchase or substitution, the Purchaser and the Company shall arrange
for the reassignment of the Deleted Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to
the
Deleted Mortgage Loan. If the Company repurchases a Mortgage Loan that is
a MERS
Mortgage Loan, the Company shall cause MERS to designate on the MERS System
the
removal of the Purchaser as beneficial holder with respect to the Mortgage
Loan.
In the event of a repurchase or substitution, the Company shall, simultaneously
with such reassignment, give written notice to the Purchaser that such
repurchase or substitution has taken place, amend the related Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Company shall be deemed to have
made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to
the
Custodian for such Qualified Substitute Mortgage Loan the documents required
by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03.
No
substitution will be made in any calendar month after the Determination Date
for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage
Loan or
Loans in the month following the date of such substitution. Monthly Payments
due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. With respect to any Deleted Mortgage loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter
be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
39
For
any
month in which the Company substitutes a Qualified Substitute Mortgage Loan
for
a Deleted Mortgage Loan, the Company shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall
shall
be distributed by the Company in the month of substitution pursuant to Section
5.01. Accordingly, on the date of such substitution, the Company shall deposit
from its own funds into the Custodial Account an amount equal to the amount
of
such shortfall.
In
addition to such repurchase or substitution obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand,
defense or assertion based on or grounded upon, or resulting from, a Breach
of
the Company representations and warranties contained in this Agreement. It
is
understood and agreed that the obligations of the Company set forth in this
Section 3.03 to cure, substitute for or repurchase a defective Mortgage Loan
and
to indemnify the Purchaser as provided in this Section 3.03 constitute the
sole
remedies of the Purchaser respecting a Breach of the foregoing representations
and warranties.
Any
cause
of action against the Company relating to or arising out of the Breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such Breach by the Purchaser or notice
thereof by the Company to the Purchaser, (ii) failures by the Company to
cure
such Breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this
Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans and shall have full power and authority, acting alone or through the
utilization of a Subservicer or a Subcontractor, to do any and all things
in
connection with such servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this Agreement and with
Accepted Servicing Practices. The Company shall be responsible for any and
all
acts of a Subservicer and a Subcontractor, and the Company’s utilization of a
Subservicer or a Subcontractor shall in no way relieve the liability of the
Company under this Agreement.
40
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance
with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, the Company shall not make any future advances, other than Servicing
Advances, with respect to a Mortgage Loan. The
Company shall not permit any modification of any material term of any Mortgage
Loan including any modifications 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, 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.
In the
event that no default exists or is imminent, the Company shall request written
consent from the Purchaser to permit such a modification and the Purchaser
shall
provide written consent or notify the Company of its objection to such
modification within three (3) Business Days of its receipt of the Company's
request. In the event of any such modification which permits the deferral
of
interest or principal payments on any Mortgage Loan, the Company shall, on
the
Business Day immediately preceding the Remittance Date in any month in which
any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.03, the difference
between (a) such month's principal and one month's interest at the Mortgage
Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and
(b)
the amount paid by the Mortgagor. The Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances made pursuant
to
Section 5.03. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Company, the Purchaser
shall
furnish the Company with any powers of attorney and other documents necessary
or
appropriate to enable the Company to carry out its servicing and administrative
duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser's reliance on the Company.
41
The
Company is authorized and empowered by the Purchaser, in its own name, when
the
Company believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS® System, or cause the removal from MERS registration
of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of
the Purchaser, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage
in the
name of MERS, solely as nominee for the Purchaser and its successors and
assigns.
The
Company shall cause to be maintained for each Cooperative Loan a copy of
the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
Section
4.02 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.01 is not paid when the same becomes due and payable, or in the
event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. In the event that any
payment
due under any Mortgage Loan is not postponed pursuant to Section 4.01 and
remains delinquent for a period of ninety (90) days or any other default
continues for a period of ninety (90) days beyond the expiration of any grace
or
cure period, the Company shall commence foreclosure proceedings. In the event
the Purchaser objects to such foreclosure action, the Company shall not be
required to make Monthly Advances with respect to such Mortgage Loan, pursuant
to Section 5.03, and the Company's obligation to make such Monthly Advances
shall terminate on the 90th day referred to above. In such connection, the
Company shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Company shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration
or
preservation of any Mortgaged Property, unless it shall determine (a) that
such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05)
or
through Insurance Proceeds (respecting which it shall have similar
priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be borne by the Purchaser. Upon completion
of
the inspection or review, the Company shall promptly provide the Purchaser
with
a written report of the environmental inspection.
42
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the
event
(a) the environmental inspection report indicates that the Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed in
lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to
fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In the
event
the Purchaser directs the Company not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Company shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property from
the
Custodial Account pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the respective Cut-off Date until the principal and interest on all
Mortgage Loans are paid in full, the Company shall proceed diligently to
collect
all payments due under each of the Mortgage Loans when the same shall become
due
and payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Mortgage Loan and the Mortgaged Property, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section
4.04 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled "Xxxxx Fargo Bank, N.A., in trust
for
the Purchaser and/or subsequent purchasers of Mortgage Loans - P & I." The
Custodial Account shall be established with an Eligible Institution. The
Custodial Account shall at all times be insured to the fullest extent allowed
by
applicable law. Funds deposited in the Custodial Account may be drawn on
by the
Company in accordance with Section 4.05. The creation of any Custodial Account
shall be evidenced by a certification in the case of an account established
with
the Company, or by a letter agreement in the case of an account held by a
depository other than the Company each in the forms attached hereto as Exhibit
F. A copy of such certification or letter agreement shall be furnished to
the
Purchaser or any subsequent purchaser, upon request.
The
Company shall deposit in the Custodial Account within two (2) Business Days
of
Company’s receipt, and retain therein, the following collections received by the
Company and payments made by the Company after the Cut-off Date, other than
payments of principal and interest due on or before the Cut-off Date, or
received by the Company prior to the Cut-off Date but allocable to a period
subsequent thereto:
43
|
(i)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
(ii)
|
all
payments on account of interest on the Mortgage Loans adjusted
to the
Mortgage Loan Remittance Rate;
|
|
(iii)
|
all
Liquidation Proceeds;
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property
or released
to the Mortgagor in accordance with Section 4.14), Section 4.11
and
Section 4.15;
|
|
(v)
|
all
Condemnation Proceeds which are not applied to the restoration
or repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 4.14;
|
|
(vi)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 4.01, 5.03, 6.01 or 6.02;
|
|
(vii)
|
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 3.03 and all amounts required to be deposited
by the
Company in connection with a shortfall in principal amount of any
Qualified Substitute Mortgage Loan pursuant to Section
3.03;
|
|
(viii)
|
with
respect to each Principal Prepayment an amount (to be paid by the
Company
out of its funds) which, when added to all amounts allocable to
interest
received in connection with the Principal Prepayment, equals one
month's
interest on the amount of principal so prepaid at the Mortgage
Loan
Remittance Rate;
|
|
(ix)
|
any
amounts required to be deposited by the Company pursuant to Section
4.11
in connection with the deductible clause in any blanket hazard
insurance
policy;
|
|
(x)
|
any
amounts received with respect to or related to any REO Property
and all
REO Disposition Proceeds pursuant to Section 4.16;
|
|
(xi)
|
with
respect to each Subsidy Loan, an amount from the Escrow Account
that when
added to the Mortgagor’s payment will equal the full monthly amount due
under the related Mortgage Note;
|
44
|
(xii)
|
with
respect to each Buydown Mortgage Loan, an amount from the Escrow
Account
that when added to the Mortgagor’s payment will equal the full monthly
amount due under the related Mortgage Note;
and
|
|
(xiii)
|
with
respect to each Pledged Asset Mortgage Loan, any amounts required
to be
deposited by the Company pursuant to Section 4.29 of this Agreement
in
connection with a Letter of Credit.
|
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited
in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05.
Section
4.05 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
|
(i)
|
to
make payments to the Purchaser in the amounts and in the manner
provided
for in Section 5.01;
|
| (ii) |
to
reimburse itself for Monthly Advances of the Company's funds made
pursuant
to Section 5.03, the Company's right to reimburse itself pursuant
to this
subclause (ii) being limited to amounts received on the related
Mortgage
Loan which represent late payments of principal and/or interest
respecting
which any such advance was made, it being understood that, in the
case of
any such reimbursement, the Company's right thereto shall be prior
to the
rights of Purchaser, except that, where the Company is required
to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, the
Company's
right to such reimbursement shall be subsequent to the payment
to the
Purchaser of the Repurchase Price pursuant to such sections and
all other
amounts required to be paid to the Purchaser with respect to such
Mortgage
Loan;
|
|
(iii)
|
to
reimburse itself for unreimbursed Servicing Advances, and for any
unpaid
Servicing Fees, the Company's right to reimburse itself pursuant
to this
subclause (iii) with respect to any Mortgage Loan being limited
to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
and such
other amounts as may be collected by the Company from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood that,
in the
case of any such reimbursement, the Company's right thereto shall
be prior
to the rights of Purchaser, except that where the Company is required
to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, in
which case
the Company's right to such reimbursement shall be subsequent to
the
payment to the Purchaser of the Repurchase Price pursuant to such
sections
and all other amounts required to be paid to the Purchaser with
respect to
such Mortgage Loan;
|
45
|
(iv)
|
to
pay itself interest on funds deposited in the Custodial
Account;
|
|
(v)
|
to
reimburse itself for expenses incurred and reimbursable to it pursuant
to
Section 8.01;
|
|
(vi)
|
to
pay any amount required to be paid pursuant to Section 4.16 related
to any
REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property,
the amount
of such expenditure or withdrawal from the Custodial Account shall
be
limited to amounts on deposit in the Custodial Account with respect
to the
related REO Property;
|
|
(vii)
|
to
reimburse itself for any Servicing Advances or REO expenses after
liquidation of the Mortgaged Property not otherwise reimbursed
above;
|
|
(viii)
|
to
remove funds inadvertently placed in the Custodial Account by the
Company;
and
|
|
(ix)
|
to
clear and terminate the Custodial Account upon the termination
of this
Agreement.
|
In
the
event that the Custodial Account is interest bearing, on each Remittance
Date,
the Company shall withdraw all funds from the Custodial Account except for
those
amounts which, pursuant to Section 5.01, the Company is not obligated to
remit
on such Remittance Date. The Company may use such withdrawn funds only for
the
purposes described in this Section 4.05.
Section
4.06 Establishment
of and Deposits to Escrow Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of
its
own funds and general assets and shall establish and maintain one or more
Escrow
Accounts, in the form of time deposit or demand accounts, titled, "Xxxxx
Fargo
Bank, N.A., in trust for the Purchaser and/or subsequent purchasers of
Residential Mortgage Loans, and various Mortgagors - T & I." The Escrow
Accounts shall be established with an Eligible Institution, 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
4.07.
The creation of any Escrow Account shall be evidenced by a certification
in the
case of an account established with the Company, or by a letter agreement
in the
case of an account held by a depository other than the Company each in the
forms
attached as Exhibit G. A copy of such certification or letter agreement shall
be
furnished to the Purchaser or any subsequent purchaser, upon
request.
46
The
Company shall deposit in the Escrow Account or Accounts within two (2) Business
Days of Company’s receipt, and retain therein:
|
(i)
|
all
Escrow Payments collected on account of the Mortgage Loans, for
the
purpose of effecting timely payment of any such items as required
under
the terms of this Agreement;
|
|
(ii)
|
all
amounts representing Insurance Proceeds or Condemnation Proceeds
which are
to be applied to the restoration or repair of any Mortgaged Property;
|
|
(iii)
|
all
payments on account of Buydown Funds or Subsidy Funds;
and
|
|
(iv)
|
all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to cover escrow disbursements.
|
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.07.
The
Company shall be entitled to retain any interest paid on funds deposited
in the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required
by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company
only:
|
(i)
|
to
effect timely payments of ground rents, taxes, assessments, water
rates,
mortgage insurance premiums, condominium charges, fire and hazard
insurance premiums or other items constituting Escrow Payments
for the
related Mortgage;
|
|
(ii)
|
to
reimburse the Company for any Servicing Advances made by the Company
pursuant to Section 4.08 with respect to a related Mortgage Loan,
but only
from amounts received on the related Mortgage Loan which represent
late
collections of Escrow Payments
thereunder;
|
|
(iii)
|
to
refund to any Mortgagor any funds found to be in excess of the
amounts
required under the terms of the related Mortgage
Loan;
|
|
(iv)
|
for
transfer to the Custodial Account and application to reduce the
principal
balance of the Mortgage Loan in accordance with the terms of the
related
Mortgage and Mortgage Note;
|
|
(v)
|
for
application to the restoration or repair of the Mortgaged Property
in
accordance with the procedures outlined in Section
4.14;
|
47
|
(vi)
|
to
pay to the Company, or any Mortgagor to the extent required by
law, any
interest paid on the funds deposited in the Escrow
Account;
|
|
(vii)
|
to
remove funds inadvertently placed in the Escrow Account by the
Company;
|
|
(viii)
|
to
clear and terminate the Escrow Account on the termination of this
Agreement; and
|
|
(ix)
|
to
transfer payment on account of Buydown Funds or Subsidy Funds to
the
Custodial Account.
|
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account (excluding the payment of LPMI Policy
premiums, which are to be paid from the Company’s own funds without
reimbursement), which shall have been estimated and accumulated by the Company
in amounts sufficient for such purposes, as allowed under the terms of the
Mortgage. The Company assumes full responsibility for the timely payment
of all
such bills and shall effect timely payment of all such charges irrespective
of
each Mortgagor's faithful performance in the payment of same or the making
of
the Escrow Payments, and the Company shall make advances from its own funds
to
effect such payments.
Section
4.09 Protection
of Accounts.
The
Company may transfer the Custodial Account, Subsidy Account or the Escrow
Account to a different Eligible Institution from time to time and shall provide
the Purchaser with notice of such transfer. 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.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) 100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property, or (ii) the
greater of (i) the outstanding principal balance of the Mortgage Loan or
(ii) an
amount such that the proceeds of such insurance shall be sufficient to avoid
the
application to the Mortgagor or loss payee of any coinsurance clause under
the
policy.
In the
event a hazard insurance policy shall be in danger of being terminated, or
in
the event the insurer shall cease to be acceptable to Xxxxxx Mae or Xxxxxxx
Mac,
the Company shall notify the Purchaser and the related Mortgagor, and shall
use
its best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.11 hereof.
48
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified by the Flood Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) the Company
shall cause to be maintained a flood insurance policy meeting the requirements
of the current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier acceptable to Xxxxxx Mae or
Xxxxxxx Mac in an amount representing coverage equal to the lesser of (i)
the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during
the
term of the Mortgage Loan, the Company determines in accordance with the
applicable law and pursuant to the Xxxxxx Mae or Xxxxxxx Mac Seller/Servicer
Guide, that the Mortgaged Property is located in a special flood hazard area
and
is not covered by flood insurance meeting the requirements of the Flood Disaster
Protection Act of 1973, as amended, the Company shall notify the related
Mortgagor that they must obtain such flood insurance coverage and if the
Mortgagor fails to provide proof of such coverage within forty-five (45)
days of
such notice, the Company shall force place the required flood insurance on
the
Mortgagor's behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Company shall
verify
that the coverage required of the owner's association, including hazard,
flood,
liability, and fidelity coverage, is being maintained in accordance with
then
current Xxxxxx Mae or Xxxxxxx Mac requirements, and secure from the owner's
association its agreement to notify the Company promptly of any change in
the
insurance coverage or of any condemnation or casualty loss that may have
a
material effect on the value of the Mortgaged Property as security.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor’s
behalf.
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 thirty (30) days prior written notice of any
cancellation, reduction in amount or material change in coverage.
49
The
Company shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
not accept any such insurance policies from insurance companies unless such
companies are acceptable to Xxxxxx Mae and Xxxxxxx Mac and are licensed to
do
business in the jurisdiction in which the Mortgaged Property is located.
The
Company shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address.
Pursuant
to Section 4.04, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to
the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company's normal servicing procedures as specified in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
Section
4.11 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10. The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices.
Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been
a loss
which would have been covered by such policy, the Company shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
be
deposited from the Company's funds, without reimbursement therefor. Upon
request
of the Purchaser, the Company shall cause to be delivered to such Purchaser
a
certificate of insurance and a statement from the insurer thereunder that
such
policy shall in no event be terminated or materially modified without thirty
(30) days' prior written notice to such Purchaser.
Section
4.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies, at its own expense, a
blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other Persons acting in any capacity requiring
such Persons to handle funds, money, documents or papers relating to the
Mortgage Loans ("Company Employees"). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker's
Blanket
Bond and shall protect and insure the Company against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Company Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy
also shall protect and insure the Company against losses in connection with
the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 4.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Company from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such Fidelity Bond and Errors
and
Omissions Insurance Policy shall be acceptable to Xxxxxx Mae or Xxxxxxx Mac.
Upon the request of any Purchaser, the Company shall cause to be delivered
to
such Purchaser a certificate of insurance for such Fidelity Bond and Errors
and
Omissions Insurance Policy and a statement from the surety and the insurer
that
such Fidelity Bond and Errors and Omissions Insurance Policy shall in no
event
be terminated or materially modified without thirty (30) days' prior written
notice to the Purchaser.
50
Section
4.13 Inspections.
If
any
Mortgage Loan is more than sixty (60) days delinquent, the Company shall
inspect
the Mortgaged Property and shall conduct subsequent inspections in accordance
with Xxxxxx Mae or Accepted Servicing Practices or as may be required by
the
primary mortgage guaranty insurer. The Company shall produce a report of
each
such inspection upon written request by the Purchaser.
Section
4.14 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing
any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. For claims greater than $15,000,
at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
|
(i)
|
the
Company shall receive satisfactory independent verification of
completion
of repairs and issuance of any required approvals with respect
thereto;
|
|
(ii)
|
the
Company shall take all steps necessary to preserve the priority
of the
lien of the Mortgage, including, but not limited to requiring waivers
with
respect to mechanics' and materialmen's
liens;
|
|
(iii)
|
the
Company shall verify that the Mortgage Loan is not in default;
and
|
|
(iv)
|
pending
repairs or restoration, the Company shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow
Account.
|
51
If
the
Purchaser is named as an additional loss payee, the Company is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
4.15 Maintenance
of PMI Policy; Claims.
Except
as
set forth on the respective Mortgage Loan Schedule, with respect to each
First
Lien Mortgage Loan with an LTV of greater than 80% at the time of origination,
the Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a PMI Policy insuring that
portion of the Mortgage Loan over 78% of value until terminated pursuant
to the
Homeowners Protection Act of 1998, 12 USC §4901, et
seq.
In the
event that such PMI Policy shall be terminated other than as required by
law,
the Company shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such terminated
PMI Policy. If the insurer shall cease to be a Qualified Insurer, the Company
shall determine whether recoveries under the PMI Policy are jeopardized for
reasons related to the financial condition of such insurer, it being understood
that the Company shall in no event have any responsibility or liability for
any
failure to recover under the PMI Policy for such reason. If the Company
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Company shall not take any action which
would
result in noncoverage under any applicable PMI Policy of any loss which,
but for
the actions of the Company would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Company shall promptly notify the insurer under
the related PMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such PMI Policy and shall take all actions
which
may be required by such insurer as a condition to the continuation of coverage
under such PMI Policy. If such PMI Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
PMI Policy as provided above.
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted First Lien Mortgage
Loan.
Pursuant to Section 4.04, any amounts collected by the Company under any
PMI
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section
4.16 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Purchaser or the Purchaser's designee, or in the event the Purchaser
is not authorized or permitted to hold title to real property in the state
where
the REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Company from any attorney
duly licensed to practice law in the state where the REO Property is located.
The Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the
Purchaser.
52
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 prior to the close
of the
third calendar year beginning after the year in which title has been taken
to
such REO Property, unless (i) a REMIC election has not been made with respect
to
the arrangement under which the Mortgage Loans and the REO Property are held,
and (ii) the Company determines that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than three years
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 a purchase money
mortgage is taken in connection with such sale, such purchase money mortgage
shall name the Company as mortgagee, and such purchase money mortgage shall
not
be held pursuant to this Agreement, but instead a separate participation
agreement among the Company and Purchaser shall be entered into with respect
to
such purchase money mortgage.
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required
above.
The
disposition of REO Property shall be carried out by the Company at such price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Company shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw from the Custodial Account in accordance with Section
4.05, the funds necessary for the proper operation management and maintenance
of
the REO Property, including the cost of maintaining any hazard insurance
pursuant to Section 4.10 and the fees of any managing agent of the Company,
or
the Company itself. The Company shall make monthly distributions on each
Remittance Date to the Purchaser of the net cash flow from the REO Property
(which shall equal the revenues from such REO Property net of the expenses
described in this Section 4.16 and of any reserves reasonably required from
time
to time to be maintained to satisfy anticipated liabilities for such
expenses).
53
Section
4.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.02, the Company shall
furnish
to the Purchaser on or before the Remittance Date each month a statement
with
respect to any REO Property covering the operation of such REO Property for
the
previous month and the Company's efforts in connection with the sale of such
REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section
4.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
4.19 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code. The Company shall file information reports with respect to the
receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.20 Prepayment
Penalty Waivers.
To
the
extent consistent with the terms of this Agreement, the Company may waive
(or
permit a subservicer to waive) a Prepayment Penalty only under the following
circumstances: (i) such waiver is standard and customary in servicing similar
Mortgage Loans and (ii) such waiver relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Company,
maximize recovery of total proceeds, taking into account the value of such
Prepayment Penalty and the related Mortgage Loan.
The
Company
shall
pay
the amount of any
Prepayment
Penalty (to the extent not collected and remitted to the Purchaser) to the
Purchaser or its assignees if (1) the representation
in
Section
3.02(xx)
is breached and such breach materially and adversely affects the interests
of
the Purchaser or its assigns,
or
(2)
the Company waives any Prepayment Penalty other than as permitted under this
Section 4.20. The
Company
shall pay the amount of such
Prepayment Penalty, for the benefit of the Purchaser or any assignee of the
Purchaser, by depositing such amount into the Custodial Account at the time
that
the amount prepaid on the related Mortgage Loan is required to be deposited
into
the Custodial Account.
54
Section
4.21 Credit
Reporting.
For
each
Mortgage Loan, the Company shall furnish on a monthly basis complete information
on the related borrower credit files to Equifax, Experian and Trans Union
Credit
Information Company, in accordance with the Fair Credit Reporting Act and
its
implementing regulations.
Section
4.22 Confidentiality/Protection
of Customer Information.
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary
for the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies. Each party agrees that it shall comply with
all
applicable laws and regulations regarding the privacy or security of Customer
Information shall maintain appropriate administrative, technical and physical
safeguards to protect the security, confidentiality and integrity of Customer
Information, including maintaining security measures designed to meet the
objectives of the Interagency Guidelines Establishing Standards for Safeguarding
Customer Information, 66 Fed. Reg. 8616 (the “Interagency Guidelines”). For
purposes of this Section, the term “Customer Information” shall have the meaning
assigned to it in the Interagency Guidelines.
Section
4.23 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Company shall adjust the
Mortgage Interest Rate on the related Adjustment Date in compliance with
the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Company shall execute and deliver any and all necessary notices required
under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. Upon the discovery by the Company
or the
receipt of notice from the Purchaser that the Company has failed to adjust
a
Mortgage Interest Rate in accordance with the terms of the related Mortgage
Note, the Company shall immediately deposit in the Custodial Account from
its
own funds the amount of any interest loss or deferral caused the Purchaser
thereby.
Section
4.24 Establishment
of and Deposits to Subsidy Account.
(a) The
Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors.” The Subsidy Account
shall be an eligible deposit account established with an eligible institution.
55
(b) The
Company shall, from time to time, withdraw funds from the Subsidy Account
for
the following purposes:
|
(i)
|
to
deposit in the Custodial Account in the amounts and in the manner
provided
for in Section 4.04(xi);
|
|
(ii)
|
to
transfer funds to another eligible institution in accordance with
Section
4.09 hereof;
|
| (iii) |
to
withdraw funds deposited in error; and
|
|
(iv)
|
to
clear and terminate the Subsidy Account upon the termination of
this
Agreement.
|
(c) Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Subsidy Account to the extent that the Company can
separately identify any Subsidy Funds deposited therein.
Section
4.25 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (a) of this Section 4.25. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph (b)
of
this Section 4.25.
(a) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subservicer. The Company shall cause
any
Subservicer used by the Company (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of this Section
4.25
and with Sections 6.04, 6.06, 9.01(d)(iii), 9.01(d)(v), 9.01(d)(vi) and 9.01(e)
of this Agreement to the same extent as if such Subservicer were the Company,
and to provide the information required with respect to such Subservicer
under
Section 9.01(d)(iv) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered by such
Subservicer under Section 6.04 and any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 6.06 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section 6.06 as and when required
to be delivered.
(b) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subcontractor. The Company shall promptly
upon request provide to the Purchaser and any Depositor (or any designee
of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of the
role
and function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
56
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(e) of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under Section
6.06,
in each case as and when required to be delivered.
Section
4.26 Subordination
of Second Lien Mortgage Loans.
The
Company is authorized, without the prior approval of the Purchaser, to consent
to the refinancing of any Superior Lien on a Mortgaged Property, provided,
that
the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher
than the Combined Loan-to-Value Ratio prior to such refinancing.
Where
permitted by law and where the senior lienholder is required to notify a
junior
lienholder be named as a party defendant in foreclosure proceedings in order
to
foreclose such junior lienholder’s equity of redemption, the Company shall, at
the reasonable expense of the Purchaser, file (or cause to be filed) a request
for notice of any action by a superior lienholder under a related senior
lien
for the protection of the Purchaser’s interest in the related Second Lien
Mortgage Loan.
If
the
Company is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the Superior Lien, or has declared
or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Company shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The Company
shall
advance the funds necessary to cure the default or reinstate the superior
lien
if the Company determines that such advance is in the best interests of the
Purchaser. The Company shall not make such an advance except to the extent
that
it determines in its reasonable good faith judgment that such advance will
be
recoverable from Liquidation Proceeds on the related Mortgage Loan. The Company
shall thereafter take such action as is necessary to recover the amount so
advanced.
Section
4.27 Application
of Buydown Funds.
57
With
respect to each Buydown Mortgage Loan, the Company shall have deposited into
the
Escrow Account, no later than the last day of the month, Buydown Funds in
an
amount equal to the aggregate undiscounted amount of payments that, when
added
to the amount the Mortgagor on such Mortgage Loan is obligated to pay on
all Due
Dates in accordance with the terms of the Buydown Agreement, is equal to
the
full scheduled Monthly Payments which are required to be paid by the Mortgagor
under the terms of the related Mortgage Note (without regard to the related
Buydown Agreement as if the Mortgage Loan were not subject to the terms of
the
Buydown Agreement). With respect to each Buydown Mortgage Loan, the Company
will
distribute to the Purchaser on each Remittance Date an amount of Buydown
Funds
equal to the amount that, when added to the amount required to be paid on
such
date by the related Mortgagor, pursuant to and in accordance with the related
Buydown Agreement, equals the full Monthly Payment that would otherwise be
required to be paid on such Mortgage Loan by the related Mortgagor under
the
terms of the related Mortgage Note (as if the Mortgage Loan were not a Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown Period and the Mortgaged Property securing such Buydown Mortgage
Loan is
sold in the liquidation thereof (either by the Company or the insurer under
any
related Primary Insurance Policy) the Company shall, on the Remittance Date
following the date upon which Liquidation Proceeds or REO Disposition proceeds
are received with respect to any such Buydown Mortgage Loan, distribute to
the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Escrow Account. Pursuant to the terms of each Buydown Agreement, any
amounts
distributed to the Purchaser in accordance with the preceding sentence will
be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such Mortgage
Loan in it entirety during the related Buydown Period, the Company shall
be
required to withdraw from the Escrow Account any Buydown Funds remaining
in the
Escrow Account with respect to such Buydown Mortgage Loan in accordance with
the
related Buydown Agreement. If a principal prepayment by a Mortgagor on a
Buydown
Mortgage Loan during the related Buydown Period, together with any Buydown
Funds
then remaining in the Escrow Account related to such Buydown Mortgage Loan,
would result in a principal prepayment of the entire unpaid principal balance
of
the Buydown Mortgage Loan, the Company shall distribute to the Purchaser
on the
Remittance Date occurring in the month immediately succeeding the month in
which
such Principal Prepayment is received, all Buydown Funds related to such
Mortgage Loan so remaining in the Escrow Account, together with any amounts
required to be deposited into the Custodial Account.
Section
4.28 Letter
of Credit Compliance.
Notwithstanding
any other provision of this Agreement, the Company shall comply with all
the
requirements of any Letter of Credit so as to assure the full benefit of
such
Letter of Credit to the Purchaser.
Section
4.29 Letter
of Credit Draws.
58
The
Company shall take all steps necessary to make draws under any Letter of
Credit
in accordance with the provisions thereof and shall draw on each Letter of
Credit all amounts payable thereunder within the time frame required by the
Letter of Credit or such shorter time within which the Company can effect
such
draw (not to exceed thirty (30) calendar days) following (i) the date the
related Pledged Asset Mortgage Loan becomes ninety (90) days or more
delinquent or (ii) the receipt of notice of non-renewal from the Pledge Holder
at any time prior to the date on which all amounts owed under the related
Pledged Asset Mortgage Loan are less than or equal to 80% of the Appraised
Value
of the related Mortgaged Property. The Company shall notify the Purchaser
promptly in writing upon receipt of notice from the Pledge Holder of non-renewal
of any Letter of Credit. Upon receipt of any amounts as a result of a draw
on a
Letter of Credit because of the non-renewal of such Letter of Credit or as
a
result of the Pledged Asset Mortgage Loan continuing in default for ninety
(90)
or more days, the Company shall deposit such amounts in the Custodial Account
and such amount shall be treated as a payment of principal.
Section
4.30 Assignment
of the Letter of Credit.
Notwithstanding
anything to the contrary in this Agreement (including, without limitation,
the
termination or transfer of the servicing rights and/or obligations of the
Company pursuant to Articles X and XI hereof), the Company, as
beneficiary under any Non-Assigned Letters of Credit, shall transfer and
assign,
at no cost to the Purchaser, each Non-Assigned Letter of Credit to the Purchaser
in accordance with the provisions thereof within ten (10) days of such
termination or transfer. In addition, the Company shall forward within
one (1) Business Day of receipt any notice received of non-renewal of any
Letter of Credit. Any funds received by the Company from draws on the
Non-Assigned Letters of Credit after the Company is no longer the servicer
hereunder shall be remitted by the Company to the successor servicer for
deposit
into the Custodial Account.
Section
4.31 Pledge
Holder Defaults.
Upon
a
default under the Letter of Credit by the Pledge Holder, the Company shall
take
possession of the assets securing the Letter of Credit and shall deposit
such
assets or the proceeds thereof in the Custodial Account and apply them as
a
prepayment of the related Pledged Asset Mortgage Loan. If such default described
in the prior sentence occurs at any time that the Company is no longer the
servicer of the related Pledged Asset Mortgage Loan, the Company shall, upon
knowledge of such default or notice from the successor servicer of such default
with respect to any Non-Assigned Letter of Credit forward such proceeds to
the
successor servicer for deposit into the Custodial Account.
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.01 Remittances.
59
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.03, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with
any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(ix);
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. All cash flows from Prepayment Penalties shall be passed through to
the
Purchaser and shall not be waived by the Seller, except pursuant to Section
4.20.
With
respect to any remittance received by the Purchaser after the second
(2nd)
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 second (2nd)
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
5.02 Statements
to Purchaser.
Not
later
than the tenth (10th)
calendar day of the month, the Company shall furnish in an agreed upon
electronic format to the Purchaser or its designee, a monthly loan level
scheduled remittance advice, trial balance report and payment and payoff
activity detail, as to the period ending on the last day of the preceding
month.
Section
5.03 Monthly
Advances by Company.
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the immediately preceding Determination Date or which were deferred
pursuant to Section 4.01. Any amounts held for future distribution and so
used
shall be replaced by the Company by deposit in the Custodial Account on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Purchaser required to
be made
on such Remittance Date. The Company's obligation to make such Monthly Advances
as to any Mortgage Loan will continue through the last Monthly Payment due
prior
to the payment in full of the Mortgage Loan, or through the last Remittance
Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan, provided,
however, that such obligation shall cease if the Company determines, in its
sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, REO Disposition
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect
to a particular Mortgage Loan. In the event that the Company determines that
any
such advances are non-recoverable, the Company shall provide the Purchaser
with
a certificate signed by two officers of the Company evidencing such
determination. The Company shall not have an obligation to make such Monthly
Advances as to any Mortgage Loan with respect to shortfalls relating to the
Servicemembers Civil Relief Act or similar state and local laws.
60
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Transfers
of Mortgaged Property.
The
Company shall use its best efforts to enforce any "due-on-sale" provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
Person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the "due-on-sale" clause applicable thereto,
provided, however, that the Company shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or threaten
to impair any recovery under the related PMI Policy, if any.
If
the
Company reasonably believes it is unable under applicable law to enforce
such
"due-on-sale" clause, the Company shall enter into (i) an assumption and
modification agreement with the Person to whom such property has been conveyed,
pursuant to which such Person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Company
is
unable under applicable law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser’s consent.
61
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the credit worthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used with respect to underwriting mortgage loans of the same type as
the
Mortgage Loan. If the credit worthiness of the proposed transferee does not
meet
such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
Section
6.02 Satisfaction
of Mortgages and Release of Retained 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 5.02, and may request the release of any
applicable Mortgage Loan Documents.
If
the
Company satisfies or releases the lien of the Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage (other
than
as a result of a modification of the Mortgage pursuant to the terms of this
Agreement or liquidation of the Mortgaged Property pursuant to the terms
of this
Agreement) or should the Company otherwise prejudice any rights the Purchaser
may have under the mortgage instruments, upon written demand of the Purchaser,
the Company shall repurchase the related Mortgage Loan at the Repurchase
Price
by deposit thereof in the Custodial Account within two (2) Business Days
of
receipt of such demand by the Purchaser. The Company shall maintain the Fidelity
Bond and Errors and Omissions Insurance Policy as provided for in Section
4.12
insuring the Company against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
retain
from the interest payment the amount of its Servicing Fee. The Servicing
Fee
shall be payable monthly and shall be computed on the basis of the same unpaid
principal balance and for the period respecting which any related interest
payment on a Mortgage Loan is received. The obligation of the Purchaser to
pay
the Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
to the
extent permitted by Section 4.05) of such Monthly Payments.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.01, and late payment charges shall be retained by the Company to
the
extent not required to be deposited in the Custodial Account. The Company
shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof except
as specifically provided for herein.
Section
6.04 Annual
Statements as to Compliance.
62
On
or
before March 1 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Company, to the effect that (i) a review of the Company’s activities during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer's supervision, and (ii)
to
the best of such officer's 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 status thereof.
Section
6.05 Annual
Independent Public Accountants' Servicing Report.
Except
with respect to any Mortgage Loans that are the subject of a Securitization
Transaction, on or before March 1, of each calendar year, commencing in 2007,
the Company, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to each Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing
of the
mortgage loans similar in nature and that such firm is of the opinion that
the
provisions of this or similar agreements have been complied with, and that,
on
the basis of such examination conducted substantially in compliance with
the
Uniform Single Attestation Program for Mortgage Bankers, nothing has come
to
their attention which would indicate that such servicing has not been conducted
in compliance therewith, except for (i) such exceptions as such firm shall
believe to be immaterial, and (ii) such other exceptions as shall be set
forth
in such statement. By providing Purchaser a copy of a Uniform Single Attestation
Program Report from their independent public accountant's on an annual basis,
Company shall be considered to have fulfilled its obligations under this
Section
6.05.
Section
6.06 Report
on Assessment of Compliance and Attestation.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction, on or before March 1 of each calendar year, commencing in 2007,
the
Company shall:
|
(i)
|
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor) regarding
the
Company’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report
shall be addressed to the Purchaser and such Depositor and signed
by an
authorized officer of the Company, and shall address each of the
Servicing
Criteria specified substantially in the form of Exhibit H hereto
delivered
to the Purchaser at the time of any Securitization
Transaction;
|
63
|
(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 4.25(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 (i) and (ii)
of this Section 6.06; and
|
|
(iv)
|
if
requested by the Purchaser or any Depositor not later than February
1 of
the calendar year in which such certification is to be delivered,
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
I.
|
The
Company acknowledges that the parties identified in clause (iv) above may
rely
on the certification provided by the Company pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (iv) above unless a Depositor is required under the Exchange Act to
file
an annual report on Form 10-K with respect to an issuing entity whose asset
pool
includes Mortgage Loans.
Each
assessment of compliance provided by a Subservicer pursuant to Section 6.06(i)
shall address each of the Servicing Criteria specified substantially in the
form
of Exhibit H hereto delivered to the Purchaser at the time of any Securitization
Transaction or, in the case of a Subservicer subsequently appointed as such,
on
or prior to the date of such appointment. An assessment of compliance provided
by a Subcontractor pursuant to Section 6.06(iii) need not address any elements
of the Servicing Criteria other than those specified by the Company pursuant
to
Section 4.25.
Section
6.07 Remedies.
(i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article IX, Sections
4.25,
6.04 or 6.06, or any breach by the Company of a representation or warranty
set
forth in Section 9.01(d)(vi)(A), or in a writing furnished pursuant to Section
9.01(d)(vi)(B) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such
closing date, or any breach by the Company of a representation or warranty
in a
writing furnished pursuant to Section 9.01(d)(vi)(B) to the extent made as
of a
date subsequent to such closing date, shall, except as provided in sub-clause
(ii) of this Section, immediately and automatically, without notice or grace
period, constitute an Event of Default with respect to the Company under
this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the
Purchaser or Depositor, as applicable, in its sole discretion to terminate
the
rights and obligations of the Company as servicer under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to
the
contrary) of any compensation to the Company; provided that to the extent
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.
64
(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 Sections 6.04 or 6.06, including (except as provided below) any failure
by
the Company to identify any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten (10) calendar days after the date on which such information,
report, certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Company under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights
and
obligations of the Company under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Company; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights
and
obligations of the Company pursuant to this Section 6.07(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.
Section
6.08 Right
to Examine Company Records.
65
The
Purchaser, or its designee, shall have the right to examine and audit any
and
all of the books, records, or other information of the Company, whether held
by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as
may be reasonable under applicable circumstances, upon reasonable advance
notice. The Purchaser shall pay its own expenses associated with such
examination.
Section
6.09 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any
action,
cause the REMIC to take any action or fail to take 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.
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.01 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special, or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance
with
all reasonable instructions and directions which the Purchaser may
give.
The
Company shall execute and deliver all such instruments and take all such
action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
7.02 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the
Company
for the most recently completed two (2) fiscal years for which such a statement
is available, as well as a Consolidated Statement of Condition at the end
of the
last two (2) fiscal years covered by such Consolidated Statement of Operations.
The Company, upon request, also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on
behalf
of the Company (and are available upon request to members or stockholders
of the
Company or to the public at large).
66
The
Company also shall make available to Purchaser or prospective Purchaser a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective purchaser to inspect
the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.01 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and hold it harmless against any and
all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Company
to perform its duties, comply with its obligations and covenants under the
terms
of this Agreement and service the Mortgage Loans all in strict compliance
with
the terms of this Agreement. The Company immediately shall notify the Purchaser
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser)
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Company shall follow any written instructions received from the
Purchaser in connection with such claim. The Purchaser promptly shall reimburse
the Company for all amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way related to the Company's indemnification
pursuant to Section 3.03, or the failure of the Company to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises and
shall
obtain and preserve its qualification to do business in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, however, that the successor
or
surviving Person shall be an institution (i) having a net worth of not less
than
$15,000,000 and (ii) which is a Xxxxxx Xxx/Xxxxxxx Mac-approved seller/servicer
in good standing. Furthermore, in the event the Company transfers or otherwise
disposes of all or substantially all of its assets to an affiliate of the
Company, such affiliate shall satisfy the condition above, and shall also
be
fully liable to the Purchaser for all of the Company's obligations and
liabilities hereunder.
67
Section
8.03 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company or any such Person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement
or
any other liability which would otherwise be imposed under this Agreement.
The
Company and any director, officer, employee or agent of the Company may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans
in
accordance with this Agreement and which in its opinion may involve it in
any
expense or liability, provided, however, that the Company may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the Company shall be entitled to reimbursement from
the
Purchaser of the reasonable legal expenses and costs of such
action.
Section
8.04 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
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, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing rights hereunder
or
sell or otherwise dispose of all of its property or assets without the prior
written consent of the Purchaser, which consent shall not be unreasonably
withheld by the Purchaser, with the understanding that any successor servicer
meet the requirements of this Agreement and be acceptable to the Rating Agencies
and trustee upon reconstitution.
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.
68
Without
in any way limiting the generality of this Section 8.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or 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 Purchaser or any third
party.
ARTICLE
IX
AGENCY
SALES, SECURITIZATION TRANSACTIONS AND WHOLE LOAN
TRANSFERS
Section
9.01 Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an
Agency
Sale, Whole Loan Transfer or Securitization Transaction
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Sales or Securitization Transactions, retaining the Company as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage
Loans
transferred may cease to be covered by this Agreement; provided,
however,
that,
in the event that any Mortgage Loan transferred pursuant to this Section
9.01 is
rejected by the transferee, the Company shall continue to service such rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole
Loan
Transfer, Agency Sale or Securitization Transaction in accordance with this
Section 9.01. In connection therewith:
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(a)
|
the
Company shall make all representations and warranties with respect
to the
Mortgage Loans as of the Closing Date and with respect to the Company
itself as of the closing date of each Whole Loan Transfer, Agency
Sale or
Securitization Transaction;
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|
(b)
|
the
Company shall negotiate in good faith and execute any seller/servicer
agreements required to effectuate the foregoing provided such agreements
create no greater obligation or cost on the part of the Company
than
otherwise set forth in this
Agreement;
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|
(c)
|
the
Company shall provide
such additional representations, warranties, covenants, opinions
of
counsel or certificates of officers of the Company as are reasonably
believed necessary by the trustee, any rating agency, guarantor
or the
Purchaser, as the case may be, in connection with such Whole Loan
Transfers, Agency Sales or Securitization Transactions. The Purchaser
shall pay all third party costs associated with the preparation
of such
information. The Company shall execute any seller/servicer agreements
required within a reasonable period of time after receipt of such
seller/servicer agreements which time shall be sufficient for the
Company
and Company’s counsel to review such seller/servicer agreements. Under
this Agreement, the Company shall retain a Servicing Fee for each
Mortgage
Loan at the Servicing Fee Rate;
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69
|
(d)
|
in
connection with any Securitization Transaction, the Company shall
(1)
within five (5) Business Days following request by the Purchaser
or any
Depositor, provide to the Purchaser and such Depositor (or, as
applicable,
cause each Third-Party Originator and each Subservicer to provide),
in
writing and in form and substance reasonably satisfactory to the
Purchaser
and such Depositor, the information and materials specified in
paragraphs
(i), (ii), (iii) and (vii) of this subsection (d), and (2) as promptly
as
practicable following notice to or discovery by the Company, provide
to
the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this subsection
(d).
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|
(i)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding (1) the Company, as originator of the
Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and (3) as
applicable,
each Subservicer, as is requested for the purpose of compliance
with Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
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|
(A)
|
the
originator’s form of organization;
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(B)
|
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage
loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the
Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in
the good
faith judgment of the Purchaser or any Depositor, 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;
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70
|
(C)
|
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Company, each Third-Party
Originator
and each Subservicer; and
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|
(D)
|
a
description of any affiliation or relationship (of a type described
in
Item 1119 of Regulation AB) between the Company, each Third-Party
Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the
Company
by the Purchaser or any Depositor in writing in advance of a
Securitization Transaction:
|
|
(1)
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the
sponsor;
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| (2) |
the
depositor;
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| (3) |
the
issuing entity;
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| (4) |
any
servicer;
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| (5) |
any
trustee;
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| (6) |
any
originator;
|
| (7) |
any
significant obligor;
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| (8) |
any
enhancement or support provider;
and
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| (9) |
any
other material transaction party.
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|
(ii)
|
If
so requested by the Purchaser or any Depositor, the Company shall
provide
(or, as applicable, cause each Third-Party Originator to provide)
Static
Pool Information with respect to the mortgage loans (of a similar
type as
the Mortgage Loans, as reasonably identified by the Purchaser as
provided
below) originated by (1) the Company, if the Company is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from
a
Qualified Correspondent), and/or (2) each Third-Party Originator.
Such
Static Pool Information shall be prepared by the Company (or Third-Party
Originator) on the basis of its reasonable, good faith interpretation
of
the requirements of Item 1105(a)(1)-(3) of Regulation AB. To the
extent
that there is reasonably available to the Company (or Third-Party
Originator) Static Pool Information with respect to more than one
mortgage
loan type, the Purchaser or any Depositor shall be entitled to
specify
whether some or all of such information shall be provided pursuant
to this
paragraph. The content of such Static Pool Information may be in
the form
customarily provided by the Company, and need not be customized
for the
Purchaser or any Depositor. Such Static Pool Information for each
vintage
origination year or prior securitized pool, as applicable, shall
be
presented in increments no less frequently than quarterly over
the life of
the mortgage loans included in the vintage origination year or
prior
securitized pool. The most recent periodic increment must be as
of a date
no later than one hundred thirty-five (135) days prior to the date
of the
prospectus or other offering document in which the Static Pool
Information
is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides
a
permanent record of the information provided, such as a portable
document
format (pdf) file, or other such electronic format reasonably required
by
the Purchaser or the Depositor, as
applicable.
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71
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
requesting party (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 letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
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(iii)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer,
for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108 of Regulation AB. Such information
shall
include, at a minimum:
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|
(A)
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the
Servicer’s form of organization;
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|
(B)
|
a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the
Mortgage
Loans and information on factors related to the Servicer that may
be
material, in the good faith judgment of the Purchaser or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without limitation:
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72
|
(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;
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|
(2)
|
the
extent of outsourcing the Servicer
utilizes;
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|
(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;
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|
(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
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|
(5)
|
such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
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|
(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;
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|
(D)
|
information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance
involving
the Servicer could have a material adverse effect on the performance
by
the Company of its servicing obligations under this Agreement or
any
Reconstitution Agreement;
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|
(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;
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|
(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
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|
(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.
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|
(iv)
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If
so requested by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligation under the Exchange Act with
respect to
any class of asset-backed securities, the Company shall (or shall
cause
each Subservicer and Third-Party Originator to) (1) notify the
Purchaser
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Company, any Subservicer
or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company, any Subservicer or any Third-Party Originator and
any of the
parties specified in Section 9.01(d)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to
such
Securitization Transaction, and (2) provide to the Purchaser and
any
Depositor a description of such proceedings, affiliations or
relationships.
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74
|
(v)
|
As
a condition to the succession to the Company or any Subservicer
as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as a
successor
to the Company or any Subservicer, the Company shall provide to
the
Purchaser and any Depositor, at least fifteen (15) calendar days
prior to
the effective date of such succession or appointment, (x) written
notice
to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory
to the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with is reporting
obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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| (vi) |
(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 under this Section 9.01(d) that, except as disclosed
in writing
to the Purchaser or such Depositor prior to such date: (1) the
Company is
not aware and has not received notice that any default, early amortization
or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Company;
(2) the
Company has not been terminated as servicer in a residential mortgage
loan
securitization, either due to a servicing default or to application
of a
servicing performance test or trigger; (3) no material noncompliance
with
the applicable Servicing Criteria with respect to other securitizations
of
residential mortgage loans involving the Company as servicer has
been
disclosed or reported by the Company; (4) no material changes to
the
Company’s policies or procedures with respect to the servicing function
it
will perform under this Agreement and any Reconstitution Agreement
for
mortgage loans of a type similar to the Mortgage Loans have occurred
during the three-year period immediately preceding the related
Securitization Transaction; (5) there are no aspects of the Company’s
financial condition that could have a material adverse effect on
the
performance by the Company of its servicing obligations under this
Agreement or any Reconstitution Agreement; (6) there are no material
legal
or governmental proceedings pending (or known to be contemplated)
against
the Company, any Subservicer or any Third-Party Originator; and
(7) there
are no affiliations, relationships or transactions relating to
the
Company, any Subservicer or any Third-Party Originator with respect
to any
Securitization Transaction and any party thereto identified by
the related
Depositor of a type described in Item 1119 of Regulation
AB.
|
(B) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
this
Section 9.01(d), the Company shall, within five (5) Business Days following
such
request, confirm in writing the accuracy of the representations and warranties
set forth in sub clause (A) above or, if any such representation and warranty
is
not accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
75
|
(vii)
|
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if so requested
by
the Purchaser or any Depositor, the Company shall provide such
information
reasonably available to the Company regarding the performance 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 (10)
Business
Days following such request.
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|
(e)
|
The
Company shall indemnify the Purchaser, each affiliate of the Purchaser,
and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for
the preparation, execution or filing of any report required to
be filed
with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement
agent or
initial purchaser, each Person who controls any of such parties
or the
Depositor (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act); and the respective present and
former
directors, officers, employees and agents of each of the foregoing
and of
the Depositor, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and
expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based
upon:
|
| (i) |
(A) any
untrue statement of a material fact contained or alleged to be
contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under Sections
4.25, 6.04,
6.06, 9.01(c) and (d) by or on behalf of the Company, or provided
under
Sections 4.25, 6.04, 6.06, 9.01(c) and (d) by or on behalf of any
Subservicer, Subcontractor or Third-Party Originator (collectively,
the
“Company Information”), or (B) the omission or alleged omission to state
in the Company Information a material fact required to be stated
in the
Company Information or necessary in order to make the statements
therein,
in the light of the circumstances under which they were made, not
misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference
to the
Company Information and not to any other information communicated
in
connection with a sale or purchase of securities, without regard
to
whether the Company Information or any portion thereof is presented
together with or separately from such other
information;
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76
|
(ii)
|
any
failure by the Company, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under Sections
4.25, 6.04, 6.06, 9.01(c) and (d), including any failure by the
Company to
identify any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB;
or
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|
(iii)
|
any
breach by the Company of a representation or warranty set forth
in Section
9.01(d)(vi)(A) or in a writing furnished pursuant to Section
9.01(d)(vi)(B) and made as of a date prior to the closing date
of the
related Securitization Transaction, to the extent that such breach
is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to such
closing
date.
|
In
the
case of any failure of performance described in sub-clause (ii) of this Section
9.01(e), 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.
|
(f)
|
The
Purchaser and each Person who controls the Purchaser (within the
meaning
of Section 15 of the Securities Act and Section 20 of the Exchange
Act)
shall indemnify the Company, each affiliate of the Company, each
Person
who controls any of such parties or the Company (within the meaning
of
Section 15 of the Securities Act and Section 20 of the Exchange
Act) and
the respective present and former directors, officers, employees
and
agents of each of the foregoing and of the Company, and shall hold
each of
them harmless from and against any losses, damages, penalties,
fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any
other costs, fees and expenses that any of them may sustain arising
out of
or based upon:
|
|
(i)
|
any
untrue statement of a material fact contained or alleged to be
contained
in any offering materials related to a Securitization Transaction,
including without limitation the registration statement, prospectus,
prospectus supplement, any private placement memorandum, any freewriting
prospectuses, any ABS informational and computational material,
any
offering circular, any computational material, and any amendments
or
supplements to the foregoing (collectively, the “Securitization
Materials”) or
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77
|
(ii)
|
the
omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials
or
necessary in order to make the statements therein, in the light
of the
circumstances under which they were made, not misleading,
|
but
only
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission is other than a statement or omission arising out of,
resulting from, or based upon the Company Information.
|
(g)
|
in
the event the Mortgage Loans become subject to a Xxxxxxx Mac
securitization, negotiate in good faith the terms of such reconstitution
agreements as may be required.
|
The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.01(d) 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
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this 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 Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
provision in a private offering of disclosure comparable to that required
under
the Securities Act). The Company acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise,
and
agrees to comply with requests made by the Purchaser or any Depositor in
good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or
any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Company, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser
or any
Depositor to be necessary in order to effect such compliance.
78
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
In
the
event the Purchaser has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date the Company shall prepare an
Assignment of Mortgage in blank or to the trustee from the Company acceptable
to
the trustee for each Mortgage Loan that is part of the Whole Loan Transfers,
Agency Sales or Securitization Transactions. The Purchaser shall pay all
preparation and recording costs associated therewith, unless the Assignment
of
Mortgage is the initial Assignment of Mortgage delivered pursuant to Section
2.03. The Company shall execute each Assignment of Mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them
as
required by the trustee upon the Company's receipt thereof. Additionally,
the
Company shall prepare and execute, at the direction of the Purchaser, any
note
endorsements in connection with any and all seller/servicer agreements. If
required at any time by the Rating Agencies, Purchaser or successor purchaser
in
connection with any Whole Loan Transfer, Agency Sale or Securitization
Transaction, the Company shall deliver such additional documents from its
Retained Mortgage File within ten (10) Business Days to the Custodian, successor
purchaser or other designee of the Purchaser as the Rating Agencies, Purchaser
or successor purchaser may require.
Notwithstanding
any provisions of this Agreement to the contrary, all Mortgage Loans sold
or
transferred to an Agency, shall be serviced in accordance with the guidelines
of
the respective Agency. All Mortgage Loans (i) not sold or transferred pursuant
to Whole Loan Transfers, Agency Sales or Securitization Transactions or (ii)
that are subject to a Securitization Transaction for which the related trust
is
terminated for any reason, shall remain subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and
with
respect thereto this Agreement shall remain in full force and
effect.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the
Company:
|
(i)
|
any
failure by the Company to remit to the Purchaser any payment required
to
be made under the terms of this Agreement which continues unremedied
for a
period of five (5) days after the date upon which written notice
of such
failure, requiring the same to be remedied, shall have been given
to the
Company by the Purchaser; or
|
79
|
(ii)
|
failure
by the Company duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Company
set forth
in this Agreement or in the Custodial Agreement which continues
unremedied
for a period of thirty (30) days after the date on which written
notice of
such failure, requiring the same to be remedied, shall have been
given to
the Company by the Purchaser or by the Custodian;
or
|
|
(iii)
|
failure
by the Company to maintain its license to do business in any jurisdiction
where the Mortgaged Property is located if such license is required;
or
|
|
(iv)
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or
for the
winding-up or liquidation of its affairs, shall have been entered
against
the Company and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (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 (3)
Business
Days; or
|
|
(vii)
|
the
Company ceases to meet the qualifications of a Xxxxxx Mae/Xxxxxxx
Mac
servicer; or
|
|
(x)
|
the
Company attempts to assign its right to servicing compensation
hereunder
or to assign this Agreement or the servicing responsibilities hereunder
in
violation of Section 8.04; or
|
|
(xi)
|
an
Event of Default as defined in Section
6.07.
|
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law or
equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Company, may terminate all the rights and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof.
80
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 Retained 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, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
Section
10.02 Waiver
of Defaults.
By
a
written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE
XI
TERMINATION
Section
11.01 Termination.
This
Agreement shall terminate upon either: (i) the later of the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder; or (ii) mutual consent
of
the Company and the Purchaser in writing.
Section
11.02 Termination
Without Cause.
The
Purchaser may terminate, at its sole option, any rights the Company may have
hereunder, without cause as provided in this Section 11.02. Any such notice
of
termination shall be in writing and delivered to the Company by registered
mail
as provided in Section 12.05.
The
Company shall be entitled to receive, as such liquidated damages, upon the
transfer of the servicing rights, an amount equal to 1.50% of the aggregate
outstanding principal amount of the Mortgage Loans as of the termination
date
paid by the Purchaser to the Company with respect to all of the Mortgage
Loans
for which a servicing fee rate of .50% is paid per annum. In the event that
it
is terminated pursuant to this Section 11.02, the Company shall be required,
at
the expense of the Purchaser, to deliver to the Custodian the entire contents
of
the Retained Mortgage File, to the extent such contents were not previously
delivered to the Custodian pursuant to this Agreement or the Custodial
Agreement.
81
Section
11.03 Termination
of Distressed Mortgage Loans.
Notwithstanding
Section 11.02, the Purchaser may terminate, at its sole option, this Agreement
with respect to the servicing of those Mortgage Loans that are determined
to be
Distressed Mortgage Loans as of the Notice Date. At such time as the aggregate
unpaid principal balance of all Mortgage Loans delinquent in payment for
a
period of ninety-one (91) days or more, divided by the aggregate unpaid
principal balance of all Mortgage Loans equals or exceeds six percent (6%),
the
servicing of all Distressed Mortgage Loans shall transfer to the Special
Servicer.
On
each
Notice Date, the Company shall send by facsimile or electronic mail a Transfer
Notice to the Special Servicer and Purchaser's designee (if so requested)
and
shall mail to the Mortgagor of each Mortgage Loans listed in such Transfer
Notice a letter advising each such Mortgagor of the transfer of the servicing
of
the related Mortgage Loan to the Special Servicer, in accordance with the
Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990; provided, however,
the content and format of such letter shall have the prior approval of the
Special Servicer. The Company shall promptly provide the Special Servicer
with
copies of all such notices. On each Transfer Date, the Company shall transfer
the servicing of Distressed Mortgage Loans to the Special Servicer.
Not
later
than two (2) Business Days immediately following the 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 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. Within five (5) Business Days following such Transfer Date, the
Company shall deliver a final trial balance (subject to invoices received
after
such date for Servicing Advances previously paid by the Company) in form
reasonably acceptable to the Special Servicer, and commensurate with generally
acceptable industry standards, detailing the amount of any unreimbursed Monthly
Advances, Servicing Advances and accrued and unpaid Servicing Fees on a loan
level basis. Should the Special Servicer desire a loan level tape or other
electronic media containing information which is not readily extractable
from
the Company's servicing system, the Company shall reasonably cooperate to
make
such loan level data available to the Special Servicer. In addition, no more
than five (5) Business Days after the Transfer Date, the Company shall transfer
to the Special Servicer any funds held in an Escrow Account or Custodial
Account
related to the Distressed Mortgage Loans listed in the related Transfer Notice.
Upon reasonable compliance by the Company with the provisions of this Section
regarding the transfer of servicing for Distressed Mortgage Loans, the Special
Servicer shall reimburse the Company within five Business Days of the related
Transfer Date for any unreimbursed Monthly Advances, Servicing Advances and
accrued and unpaid Servicing Fees with respect to such Distressed Mortgage
Loans
which have been properly documented. Notwithstanding anything herein to the
contrary, the transfer of servicing for Distressed Mortgage Loans shall not
require the payment of a termination fee therefor.
82
In
connection with the transfer of any Distressed Mortgage Loan, the Company
will
be responsible for servicing the Distressed Mortgage Loan until the effective
date of transfer of servicing to the Special Servicer, but shall have no
right
or obligation to service such Distressed Mortgage Loan from and after the
effective date of the transfer of servicing to the Special Servicer.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to Company.
Prior
to
termination of the Company's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 10.01, 11.01 (ii) or pursuant to Section 11.02
the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement, or
(ii)
appoint a successor having the characteristics set forth in Section 8.02
and
which shall succeed to all rights and assume all of the responsibilities,
duties
and liabilities of the Company under this Agreement prior to the termination
of
Company's responsibilities, duties and liabilities under this Agreement.
In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree. In the event that the Company's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under
this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the
Purchaser under Section 3.03, it being understood and agreed that the provisions
of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable to the Company
notwithstanding any such sale, assignment, resignation or termination of
the
Company, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 3.01, except for subsection (h) with respect to the sale of the Mortgage
Loans and subsections (i) and (k) thereof, whereupon such successor shall
become
fully vested with all the rights, powers, duties, responsibilities, obligations
and liabilities of the Company, with like effect as if originally named as
a
party to this Agreement. Any termination or resignation of the Company or
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01 or 11.02
shall not affect any claims that any Purchaser may have against the Company
arising out of the Company's actions or failure to act prior to any such
termination or resignation.
83
The
Company shall deliver promptly to the successor servicer the funds in the
Custodial Account, Subsidy Account and Escrow Account and all Retained 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 12.05.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by written agreement signed by
the
Company and the Purchaser.
Section
12.03 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of
New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
Each
of
the Company and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect of any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Company or the Purchaser. This provision is
a
material inducement for the Purchaser to enter into this Agreement.
Section
12.04 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section
12.05 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
|
(i)
|
if
to the Company with respect to servicing or investor reporting
issues:
|
84
Xxxxx
Fargo Bank, N.A.
1
Home
Xxxxxx
Xxx
Xxxxxx, XX 00000-0000
Attention:
Xxxx X. Xxxxx, MAC X2401-042
Fax:
515/000-0000
If
to the
Company with respect to all other issues:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxxx Xxx
Xxxxxxxxx,
XX 00000
Attention:
Structured Finance Manager, MAC X3906-012
Fax:
301/000-0000
In
each
instance with a copy to:
Xxxxx
Fargo Bank, N.A.
1
Home
Campus
Xxx
Xxxxxx, Xxxx 00000-0000
Attention:
General Counsel, MAC # X2401-06T
Fax:
515/000-0000
or
such
other address as may hereafter be furnished to the Purchaser in writing
by
the
Company;
|
(ii)
|
if
to Purchaser:
|
Xxxxxx
Brothers Bank, FSB
000
0xx
Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
Fax:
(000)000-0000
Section
12.06 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
12.07 Relationship
of Parties.
85
Nothing
herein contained shall be deemed or construed to create a partnership or
joint
venture between the parties hereto and the services of the Company shall
be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
12.08 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns. The
parties agree that this Agreement and signature pages thereof may be transmitted
between them by facsimile and that faxed signatures may constitute original
signatures and that a faxed signature page containing the signature (faxed
or
original) is binding on the parties.
Section
12.09 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at
the
Company's expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option. The Company shall only
be
responsible for the costs of recording the initial Assignments of Mortgage.
In
no event shall the Company be responsible for the cost of recording Assignments
of Mortgage in connection with a subsequent sale or transfer of the Mortgage
Loans by the Purchaser.
Section
12.10 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any Person to exercise any rights of
the
Purchaser hereunder, by executing an Assignment, Assumption and Recognition
Agreement substantially in the form attached as Exhibit J, and the assignee
or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section
12.11 Solicitation
of Mortgagor.
Neither
party shall, after the respective Closing Date, take any action to solicit
the
refinancing of any Mortgage Loan. It is understood and agreed that neither
(i)
promotions undertaken by the either party or any affiliate of such party
which
are directed to the general public at large, including, without limitation,
mass
mailings based upon commercially acquired mailing lists, newspaper, radio,
television advertisements nor (ii) serving the refinancing needs of a Mortgagor
who, without solicitation, contacts either party in connection with the
refinance of such Mortgage or Mortgage Loan, shall constitute solicitation
under
this Section.
86
[Intentionally
Blank - Next Page Signature Page]
87
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 | XXXXX FARGO BANK, N.A. |
| Purchaser | Company |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
88
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF ____________
|
)
|
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for
said
State, personally appeared ________, known to me to be _________ of Xxxxx
Fargo
Bank, N.A., the national banking association that executed the within instrument
and also known to me to be the person who executed it on behalf of said bank,
and acknowledged to me that such bank executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
___________________________________
Notary
Public
My
Commission expires _________________
89
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for
said
State, personally appeared _____________________________________, known to
me to
be the ______________________________ of ______________________________,
the
corporation that executed the within instrument and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to
me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
___________________________________
Notary
Public
My
Commission expires _________________
EXHIBIT
A
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this _____ day of __________ 20___, for
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx
Fargo Bank, N.A.
(the “Seller”)
as the Seller under that certain Master Mortgage Loan Purchase Agreement,
(“Purchase Agreement”) and as the Company under that certain Master Seller’s
Warranties and Servicing Agreement (the “Servicing Agreement”) each dated as of
May 1, 2006, (collectively, the “Agreements”)
does hereby sell, transfer, assign, set over and convey to Xxxxxx Brothers
Bank,
FSB as the Purchaser (the “Purchaser”)
under the Agreements, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to each of the Mortgage Loans listed on the related Mortgage
Loan Schedule attached hereto as Schedule
I,
together with the Custodial Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 2.03 of
the
Servicing Agreement, the Seller has delivered to the Custodian the documents
required
to be delivered under the Agreements
for each Mortgage Loan to be purchased. The Servicing Files and the Retained
Mortgage Files retained by the Seller pursuant to Section 2.01 of the Servicing
Agreement shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loans to the Purchaser.
The
Seller hereby makes the representations and warranties set forth in Section
3.01
and for each of the Mortgage Loans, Section 3.02 of the Servicing Agreement
as
of the date hereof.
Attached
hereto as Exhibit
A
is a copy of the Underwriting Guidelines relating to the Mortgage Loans listed
on the Mortgage Loan Schedule attached hereto as Schedule
I.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreements.
This
Assignment 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.
|
XXXXXX
BROTHERS BANK, FSB
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Seller |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
Schedule
I
Mortgage
Loan Schedule
Exhibit
A
Underwriting
Guidelines
EXHIBIT
B
CUSTODIAL
AGREEMENT
EXHIBIT
C
CONTENTS
OF EACH CUSTODIAL MORTGAGE FILE,
RETAINED
MORTGAGE FILE AND SERVICING FILE
With
respect to each Mortgage Loan, the Retained and Custodial Mortgage Files
shall
include each of the following items, which shall be available for inspection
by
the Purchaser and any prospective Purchaser, and which shall be retained
by the
Company in the Retained Mortgage File or Servicing File or delivered to the
Custodian pursuant to Sections 2.01 and 2.03 of the Seller's Warranties and
the
Servicing Agreement to which this Exhibit is attached (the
"Agreement"):
With
respect to each Custodial Mortgage File:
|
1.
|
The
original Mortgage Note bearing all intervening endorsements, endorsed
"Pay
to the order of
without recourse" and signed in the name of the Company by an authorized
officer (in the event that the Mortgage Loan was acquired by the
Company
in a merger, the signature must be in the following form: "[Company],
successor by merger to [name of predecessor]"; and in the event
that the
Mortgage Loan was acquired or originated by the Company while doing
business under another name, the signature must be in the following
form:
"[Company], formerly known as [previous
name]").
|
|
2.
|
The
originals or certified true copies of any document sent for recordation
of
all assumption, modification, consolidation or extension agreements,
with
evidence of recording thereon.
|
|
3.
|
The
original Assignment of Mortgage for each Mortgage Loan, in form
and
substance acceptable for recording (except for the insertion of
the name
of the assignee and recording information). The Assignment of Mortgage
must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage
investors in the area where the Mortgaged Property is located or
on
direction of the Purchaser. If the Mortgage Loan was acquired by
the
Company in a merger, the Assignment of Mortgage must be made by
"[Company], successor by merger to [name of predecessor]." If the
Mortgage
Loan was acquired or originated by the Company while doing business
under
another name, the Assignment of Mortgage must be by "[Company],
formerly
know as [previous name]."
|
|
4.
|
The
original of any guarantee executed in connection with the Mortgage
Note.
|
|
5.
|
Copy
of powers of attorney, if
applicable.
|
With
respect to each Retained Mortgage File:
| 6. |
The
original Mortgage, with evidence of recording thereon or a certified
true
and correct copy of the Mortgage sent for recordation. If in connection
with any Mortgage Loan, the Company cannot deliver or cause to
be
delivered the original Mortgage with evidence of recording thereon
on or
prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation
or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the Company shall
deliver
or cause to be delivered to the Custodian, a photocopy of such
Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Company stating that such
Mortgage
has been dispatched to the appropriate public recording office
for
recordation and that the original recorded Mortgage or a copy of
such
Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage will be promptly
delivered
to the Custodian upon receipt thereof by the Company; or (ii) in
the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete
copy of the
original recorded Mortgage..
|
|
7.
|
For
any Mortgage Loan not recorded in the name of MERS, originals or
certified
true copies of documents sent for recordation of all intervening
assignments of the Mortgage with evidence of recording thereon,
or if any
such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the Company
shall
deliver or cause to be delivered to the Custodian, a photocopy
of such
intervening assignment, together with (i) in the case of a delay
caused by
the public recording office, an Officer's Certificate of the Company
stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and
that such
original recorded intervening assignment of mortgage or a copy
of such
intervening assignment of mortgage certified by the appropriate
public
recording office or by the title insurance company that issued
the title
policy to be a true and complete copy of the original recorded
intervening
assignment of mortgage will be promptly delivered to the Custodian
upon
receipt thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original
recorded
intervening assignment or in the case where an intervening assignment
is
lost after recordation in a public recording office, a copy of
such
intervening assignment certified by such public recording office
to be a
true and complete copy of the original recorded intervening
assignment.
|
|
8.
|
The
original mortgagee policy of title insurance or other evidence
of title
such as a copy of the title commitment or copy of the preliminary
title
commitment.
|
| 9. |
Any
security agreement, chattel mortgage or equivalent executed in
connection
with the Mortgage.
|
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent required by the Underwriting
Guidelines:
|
10.
|
The
original hazard insurance policy and, if required by law, flood
insurance
policy, in accordance with Section 4.10 of the
Agreement.
|
|
11.
|
Residential
loan application.
|
|
12.
|
Mortgage
Loan closing statement.
|
|
13.
|
Verification
of employment and income, unless originated under the Company's
Limited
Documentation program, Xxxxxx Xxx Timesaver
Plus.
|
|
14.
|
Verification
of acceptable evidence of source and amount of down
payment.
|
|
15.
|
Credit
report on the Mortgagor.
|
|
16.
|
Residential
appraisal report.
|
|
17.
|
Photograph
of the Mortgaged Property.
|
|
18.
|
Survey
of the Mortgage property, if required by the title company or applicable
law.
|
|
19.
|
Copy
of each instrument necessary to complete identification of any
exception
set forth in the exception schedule in the title policy, i.e. map
or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
|
|
20.
|
All
required disclosure statements.
|
|
21.
|
If
available, termite report, structural engineer's report, water
potability
and septic certification.
|
|
22.
|
Sales
contract, if applicable.
|
|
23.
|
Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files,
and all
other processing, underwriting and closing papers and records which
are
customarily contained in a mortgage loan file and which are required
to
document the Mortgage Loan or to service the Mortgage
Loan.
|
|
24.
|
Amortization
schedule, if available.
|
|
25.
|
Payment
history for any Mortgage Loan that has been closed for more than
ninety
(90) days.
|
In
the
event an Officer's Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 240
days
of the Closing Date, an Officer's Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(iii) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, and (iv)
specify the date the applicable recorded document will be delivered to the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser,
which
consent shall not be unreasonably withheld.
EXHIBIT
D
Electronic
Data File
|
(1)
|
the
Company’s Mortgage Loan identifying
number;
|
|
(2)
|
the
street address of the Mortgaged Property including the city, state,
county
and zip code;
|
|
(3)
|
a
code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a cooperative, a townhouse,
manufactured housing or a unit in a condominium
project;
|
| (4) |
the
Mortgage Interest Rate as of the Cut-off
Date;
|
| (5) |
the
current Monthly Payment;
|
| (6) |
loan
term, number of months;
|
| (7) |
the
stated maturity date;
|
|
(8)
|
the
Stated 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;
|
|
(9)
|
the
Loan-to-Value Ratio;
|
|
(10)
|
a
code indicating whether the Mortgage Loan is an Interest Only Mortgage
Loan;
|
|
(11)
|
a
code indicating whether the Mortgage Loan is a temporary buydown
(Y or
N);
|
|
(12)
|
the
Servicing Fee Rate;
|
|
(13)
|
a
code indicating the mortgage insurance provider and percent of
coverage,
if applicable;
|
|
(14)
|
a
code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
|
| (15) |
a
code indicating whether the Mortgage Loan is a Time$aver® Mortgage Loan (Y
or N);
|
|
(16)
|
the
Mortgagor's first and last name;
|
|
(17)
|
a
code indicating whether the Mortgaged Property is owner-occupied;
|
|
(18)
|
the
remaining months to maturity from the Cut-off Date, based on the
original
amortization schedule;
|
|
(19)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(20)
|
the
actual next Due Date of the Mortgage
Loan;
|
|
(21)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
actual principal balance;
|
|
(22)
|
the
original principal amount of the Mortgage Loan;
|
|
(23)
|
a
code indicating the purpose of the loan (i.e., purchase, financing,
rate/term refinancing, cash-out refinancing);
|
|
(24)
|
the
Mortgage Interest Rate at origination;
|
|
(25)
|
the
amount on which the first Monthly Payment was due on the Mortgage
Loan;
|
|
(26)
|
a
code indicating the documentation style (i.e., full (providing
two years
employment verification - 2 years W-2’s and current pay stub or 2 years
1040’s for self employed borrowers), alternative or
reduced);
|
|
(27)
|
a
code indicating if the Mortgage Loan is subject to a PMI
Policy;
|
|
(28)
|
the
Appraised Value of the Mortgage
Property;
|
|
(29)
|
the
sale price of the Mortgaged Property, if
applicable;
|
| (30) |
the
Mortgagor’s Underwriting FICO
Score;
|
| (31) |
term
of Prepayment Penalty in years;
|
| (32) |
a
code indicating the product type;
|
| (33) |
a
code indicating the credit grade of the Mortgage
Loan;
|
|
(34)
|
the
unpaid balance of the Mortgage Loan as of the close of business
on the
Cut-off Date, after deduction of all payments of
principal;
|
|
(35)
|
the
Note date of the Mortgage Loan;
|
|
(36)
|
the
mortgage insurance certificate number and percentage of coverage,
if
applicable;
|
|
(37)
|
the
Mortgagor’s and Co-Mortgagor’s (if any) date of
birth;
|
|
(38)
|
if
the Mortgage Loan is a MERS Mortgage Loan, the MIN Number for each
MERS
Mortgage Loan;
|
|
(39)
|
employer
name;
|
|
(40)
|
subsidy
program code;
|
|
(41)
|
servicer
name;
|
|
(42)
|
the
combined Loan-to-Value Ratio;
|
|
(43)
|
the
total Loan-to-Value Ratio;
|
|
(44)
|
whether
the Mortgage Loan is convertible (Y or
N);
|
|
(45)
|
a
code indicating whether the Mortgage Loan is a relocation loan
(Y or
N);
|
|
(46)
|
a
code indicating whether the Mortgage Loan is a leasehold loan (Y
or
N);
|
|
(47)
|
a
code indicating whether the Mortgage Loan is an Alt A loan (Y or
N);
|
|
(48)
|
a
code indicating whether the Mortgage Loan is a no ratio loan (Y
or N);
|
|
(49)
|
a
code indicating whether the Mortgage Loan is a Pledged Asset Mortgage
Loan
(Y or N);
|
|
(50)
|
effective
LTV percentage for Pledged Asset Mortgage
Loans;
|
|
(51)
|
citizenship
type code;
|
|
(52)
|
a
code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan
balance;
|
|
(53)
|
the
name of the client for which the Mortgage Loan was
originated;
|
|
(54)
|
the
program code;
|
|
(55)
|
the
loan sub doc code;
|
|
(56)
|
a
code indicating amortization type (1 or
2);
|
|
(57)
|
interest
only note payment;
|
|
(58)
|
first
full amortization payment date;
|
|
(59)
|
interest
only term, number of months;
|
|
(60)
|
remaining
interest only term, number of
months;
|
|
(61)
|
a
code indicating whether the Mortgage Loan is a 2nd
lien (Y or N);
|
|
(62)
|
a
code indicating borrower VOA or lender VOA (L or
B);
|
|
(63)
|
combined
current loan balance;
|
The
Company shall provide the following
For
the Home Mortgage Disclosure Act (HMDA):
|
(64)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
ethnicity;
|
|
(65)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
race;
|
|
(66)
|
lien
status;
|
|
(67)
|
for
cash-out refinance loans, the cash
purpose;
|
|
(68)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
gender;
|
|
(69)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable) social security
numbers;
|
|
(70)
|
the
number of units for the property;
|
|
(71)
|
the
year in which the property was
built;
|
|
(72)
|
the
qualifying monthly income of the
Mortgagor;
|
|
(73)
|
the
number of bedrooms contained in the
property;
|
|
(74)
|
a
code indicating first time buyer (Y or
N);
|
|
(75)
|
the
total rental income, if any;
|
The
Company shall provide the following
for
the adjustable rate Mortgage Loans (if applicable):
|
(76)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(77)
|
the
Periodic Interest Rate Cap;
|
|
(78)
|
the
Index;
|
|
(79)
|
the
next interest rate and payment Adjustment
Date;
|
|
(80)
|
the
Mortgage Interest Rate adjustment cap and all subsequent interest
rate
Adjustment Dates;
|
|
(81)
|
the
Gross Margin; and
|
|
(82)
|
the
lifetime interest rate cap.
|
EXHIBIT
E
UNDERWRITING
GUIDELINES
EXHIBIT
F
FORMS
OF
CUSTODIAL ACCOUNT CERTIFICATIONS
CUSTODIAL
ACCOUNT CERTIFICATION
___________________,
20__
Xxxxx
Fargo Bank, N.A. hereby certifies that it has established the account described
below as a Custodial Account pursuant to Section 4.04 of the Seller's Warranties
and Servicing Agreement, dated as of ___________________,
20__,.
Title
of
Account: Xxxxx
Fargo Bank, N.A. in trust for the Purchaser and/or subsequent purchasers
of
Mortgage Loans - P & I
Address
of office or branch
of
the
Company at which
| Account is maintained: | _________________________ |
| _________________________ | |
| _________________________ | |
| _________________________ | |
|
XXXXX
FARGO BANK, N.A.
Company
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
|
CUSTODIAL
ACCOUNT LETTER AGREEMENT
___________________,
20__
| To: | _____________________ | |
| _____________________ | ||
|
_____________________
(the "Depository")
|
As
Company under the Seller's Warranties and Servicing Agreement, dated as of
,
20 ,
(the
"Agreement"), we hereby authorize and request you to establish an account,
as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
"Xxxxx Fargo Bank, N.A., in trust for the Purchaser and/or subsequent purchasers
of Mortgage Loans - P & I". All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Company.. This letter is submitted
to you in duplicate. Please execute and return one original to us.
|
XXXXX
FARGO BANK, N.A.
Company
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
Date:
________________________
|
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.
|
____________________________
Depository
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
Date:
________________________
|
EXHIBIT
G
FORMS
OF
ESCROW ACCOUNT CERTIFICATIONS
ESCROW
ACCOUNT CERTIFICATION
___________________,
20__
Xxxxx
Fargo Bank, N.A. hereby certifies that it has established the account described
below as an Escrow Account pursuant to Section 4.06 of the Seller's Warranties
and Servicing Agreement, dated as of ,
20 ,.
| Title of Account: |
Xxxxx
Fargo Bank, N.A. in trust for the Purchaser and/or subsequent purchasers
of Mortgage Loans, and various Mortgagors - T &
I
|
Address
of office or branch
of
the
Company at which
| Account is maintained: | _________________________ |
| _________________________ | |
| _________________________ | |
| _________________________ | |
|
XXXXX
FARGO BANK, N.A.
Company
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
|
ESCROW
ACCOUNT LETTER AGREEMENT
___________________,
20__
| To: | _____________________ | |
| _____________________ | ||
|
_____________________
(the "Depository")
|
As
Company under the Seller's Warranties and Servicing Agreement, dated as of
,
20 ,
(the
"Agreement"), we hereby authorize and request you to establish an account,
as an
Escrow Account pursuant to Section 4.06 of the Agreement, to be designated
as
"Xxxxx Fargo Bank, N.A., in trust for the Purchaser and/or subsequent purchasers
of Mortgage Loans, and various Mortgagors - T & I". All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Company.
This letter is submitted to you in duplicate. Please execute and return one
original to us.
|
XXXXX
FARGO BANK, N.A.
Company
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
Date:
________________________
|
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.
|
____________________________
Depository
|
|
|
By:
_________________________
Name:
_______________________
Title:
________________________
Date:
________________________
|
EXHIBIT
H
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company][Name of Subservicer]
shall address, as a minimum, the criteria identified below as “Applicable
Servicing Criteria”
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
|
General
Servicing Considerations
|
|||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
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.
|
X
|
|
|
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 (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
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
|
|
Reg
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
|
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
|
|
|
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.
|
X
|
EXHIBIT
I
SARBANES
CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [Name of
Servicer] (the “Servicer”), 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 Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Servicer under
the
Agreement, and based on my knowledge and the compliance review conducted
in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by each Subservicer ad Subcontractor pursuant
to
the Agreement have been provided to the [Depositor] [Master Servicer]. Any
material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date:
By:
_________________________
Name:
_______________________
Title:
________________________
EXHIBIT
J
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
____________,
20__
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT, dated ___________________, 20__ between
_________________, a _________________ corporation having an office at
_________________ ("Assignor") and _________________, having an office at
_________________ ("Assignee"):
For
and
in consideration of the sum of one dollar ($1.00) and other valuable
consideration the receipt and sufficiency of which are hereby acknowledge,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under that certain
Seller's Warranties and Servicing Agreement, (the "Seller's Warranties and
Servicing Agreement"), dated as of _________________, by and between
_________________ (the "Purchaser"), and _________________ (the "Company"),
and
the Mortgage Loans delivered thereunder by the Company to the Assignor, and
that
certain Custodial Agreement, (the "Custodial Agreement"), dated as of
_________________, by and among the Company, the Purchaser and _________________
(the "Custodian").
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to
the
Seller's Warranties and Servicing Agreement or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Seller's Warranties and Servicing
Agreement, the Custodial Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of, and
has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Seller's Warranties
and
Servicing Agreement or the Mortgage Loans; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the "33 Act") or which would render
the
disposition of the Mortgage Loans a violation of Section 5 of the 33 Act
or
require registration pursuant thereto.
3. That
Assignee warrants and represent to, and covenants with, the Assignor and
the
Company pursuant to Section 12.10 of the Seller's Warranties and Servicing
Agreement that:
a. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants
and
conditions of the Seller's Warranties and Servicing Agreement, the Mortgage
Loans and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Company and the Assignor
all of
the Assignor's obligations as purchaser thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
33 Act or the securities laws of any state;
c. The
purchase price being paid by the Assignee for the Mortgage Loans are in excess
of $250,000.00 and will be paid by cash remittance of the full purchase price
within sixty (60) days of the sale;
d. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the Assignee nor
any
person authorized to act therefor has offered to Mortgage Loans by means
of any
general advertising or general solicitation within the meaning of Rule 502(c)
of
US Securities and Exchange Commission Regulation D, promulgated under the
1933
Act;
e. The
Assignee considers itself a substantial sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
f. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
g. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner which
would
constitute a distribution of the Mortgage Loans under the 33 Act or which
would
render the disposition of the Mortgage Loans a violation of Section 5 of
the 33
Act or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect
to the Mortgage Loans; and
h. Either
(1) the Assignee is not an employee benefit plan ("Plan") within the meaning
of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan (also "Plan") within the meaning of section 4975(e)(1)
of
the Internal Revenue Code of 1986 ("Code"), and the Assignee is not directly
or
indirectly purchasing the Mortgage Loans on behalf of, investment manager
of, as
named fiduciary of, as Trustee of, or with assets of, a Plan; or (2) the
Assignee's purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
i. The
Assignee's address for purposes of all notices and correspondence related
to the
Mortgage Loans and the Seller's Warranties and Servicing Agreements
is:
_____________________________________
_____________________________________
_____________________________________
Attention:
_________________
The
Assignee's wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Seller's Warranties and Servicing
Agreement is:
_____________________________________
_____________________________________
_____________________________________
Attention:
_________________
4. From
and
after the date hereof, the Company shall note the transfer of the Mortgage
Loans
to the Assignee in its books and records, the Company shall recognize the
Assignee as the owner of the Mortgage Loans and the Company shall service the
Mortgage Loans for the benefit of the Assignee pursuant to the Seller’s
Warranties and Servicing Agreement, the terms of which are incorporated herein
by reference. It is the intention of the Assignor, the Company and the Assignee
that the Seller’s Warranties and Servicing Agreement shall be binding upon and
inure to the benefit of the Company and the Assignee and their respective
successors and assigns.
[Signatures
Follow]
IN
WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement to be executed by their duly authorized officers as of
the
date first above written.
| ________________________ | ________________________ |
|
Assignor
|
Assignee
|
|
By:
_________________________
|
By:
_________________________
|
|
Name:
_______________________
|
Name:
_______________________
|
|
Its:
_________________________
|
Its:
_________________________
|
Acknowledged
and agreed to by:
XXXXX
FARGO BANK, N.A.
Servicer
|
By:
_________________________
|
|
Name:
_______________________
|
|
Its:
_________________________
|
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Master Mortgage Loan Purchase Agreement (the "Agreement"), dated as of May
1,
2006 by and between Xxxxxx Brothers Bank, FSB, having an office at 000 Xxxxxxx
Xxxxxx 0xx
Xxxxx,
Xxx Xxxx, XX 00000 (the "Purchaser") and Xxxxx Fargo Bank, N.A., having an
xxxxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000 (the
"Seller").
WITNESSETH
WHEREAS,
the Seller agrees to sell, and the Purchaser agrees to purchase, from time
to
time certain fixed rate and adjustable rate, first and second lien, residential
mortgage loans (the "Mortgage Loans") on a servicing retained basis as described
herein:
WHEREAS,
the Mortgage Loans shall be delivered as pools of whole loans (each a “Loan
Package”) on various dates as provided herein (each a “Closing Date”);
and
WHEREAS,
the parties intend hereby to set forth the terms and conditions upon which
the
proposed Transactions will be effected.
NOW
THEREFORE, in consideration of the promises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION
1.
All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Master Seller's Warranties and Servicing Agreement, dated as of
the
date herewith (the "Seller's Warranties and Servicing Agreement").
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase from time to time,
Mortgage Loans in Loan Packages having aggregate principal balances on the
related Cut-off Date in an amount as set forth in the respective Commitment
Letters, or in such other amount as agreed to by the Purchaser and the Seller
as
evidenced by the aggregate scheduled principal balance of the Mortgage Loans
in
the related Loan Package accepted by the Purchaser on the related Closing Date.
The Mortgage Loans will be delivered pursuant to a Seller's Warranties and
Servicing Agreement, between the Purchaser and the Seller.
SECTION
3. Mortgage
Schedule.
The
Seller will provide the Purchaser with certain information constituting a
listing of the Mortgage Loans to be purchased under this Agreement for each
Transaction (the "Mortgage Loan Schedule"). Each Mortgage Loan Schedule shall
conform to the definition of "Mortgage Loan Schedule" under the Seller's
Warranties and Servicing Agreement.
SECTION
4. Purchase
Price.
The
purchase price for each Loan Package (the "Purchase Price") shall be the
percentage of par as stated in the related Commitment Letter, multiplied by
the
aggregate scheduled principal balance, as of the related Cut-off Date, of the
Mortgage Loans in the related Loan Package, after application of scheduled
payments of principal due on or before such Cut-off Date whether or not
collected. The Purchase Price for a Loan Package may be adjusted as stated
in
the related Commitment Letter.
In
addition to the Purchase Price, the Purchaser shall pay to the Seller, at
closing, accrued interest on the aggregate scheduled principal amount of the
related Mortgage Loans at the weighted average Mortgage Loan Remittance Rate
for
each Loan Package from the related Cut-off Date through the day prior to the
related Closing Date, inclusive.
With
respect to each Loan Package, the Purchaser shall be entitled to (1) all
scheduled principal due after the related Cut-off Date, (2) all other recoveries
of principal collected after the related Cut-off Date (provided, however, that
all scheduled payments of principal due on or before the related Cut-off Date
and collected by the Seller after the related Cut-off Date shall belong to
the
Seller), and (3) all payments of interest on the Mortgage Loans at the Mortgage
Loan Remittance Rate (minus that portion of any such payment which is allocable
to the period prior to the related Cut-off Date). The principal balance of
each
Mortgage Loan as of the related Cut-off Date is determined after application
of
payments of principal due on or before the related Cut-off Date whether or
not
collected. Therefore, payments of scheduled principal and interest prepaid
for a
Due Date beyond the related Cut-off Date shall not be applied to the principal
balance as of the related Cut-off Date. Such prepaid amounts (minus interest
at
the Servicing Fee Rate) shall be the property of the Purchaser. The Seller
shall
deposit any such prepaid amounts into the Custodial Account, which account
is
established for the benefit of the Purchaser for subsequent remittance by the
Seller to the Purchaser.
SECTION
5. Examination
of Mortgage Files.
Prior to
the related Closing Date, the Seller shall (a) deliver to the Purchaser in
escrow, for examination, the Custodial Mortgage File for each Mortgage Loan,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the Custodial Mortgage Files and the Retained Mortgage Files
available to the Purchaser for examination at the Seller's offices or such
other
location as shall otherwise be agreed upon by the Purchaser and the Seller.
Such
examination may be made by the Purchaser at any time before or after the related
Closing Date and by any prospective purchaser of the Mortgage Loans from the
Purchaser after the related Closing Date, upon prior reasonable notice to the
Seller. The fact that the Purchaser or any prospective purchaser of the Mortgage
Loans has conducted or has failed to conduct any partial or complete examination
of the Custodial Mortgage Files and the Retained Mortgage Files shall not affect
the Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief or remedy as provided under the related Seller's
Warranties and Servicing Agreement.
Prior
to
Seller’s receipt of the Purchase Price, the Purchaser shall cause the Custodian
to act as bailee for the sole and exclusive benefit of the Seller pursuant
to
the Custodial Agreement and act only in accordance with Seller’s instructions.
Upon the Seller’s receipt of the Purchase Price, the Seller shall provide
notification to the Custodian to release ownership of the Mortgage Loan
Documents specified above to the Purchaser. Such notification shall be in a
form
of a written notice by facsimile or other electronic media, with a copy sent
to
the Purchaser. Subsequent to such release, such Mortgage Loan Documents shall
be
retained by the Custodian for the benefit of the Purchaser. All Mortgage Loan
Documents related to Mortgage Loans not purchased by the Purchaser on the
related Closing Date, shall be maintained by the Custodian for the benefit
of
the Seller and shall be returned to the Seller within two (2) Business Days
after such Closing Date.
2
SECTION
6. Representations,
Warranties and Agreements of Seller.
The
Seller agrees and acknowledges that it shall, as a condition to the consummation
of the transactions contemplated hereby, make the representations and warranties
specified in Section 3.01 and 3.02 of the Seller's Warranties and Servicing
Agreement, as of the Closing Date. The meaning of the term "Agreement" as used
in Sections 3.01 and 3.02 of the Seller's Warranties and Servicing Agreement
shall include this Agreement. The Seller, without conceding that the Mortgage
Loans are securities, hereby makes the following additional representations,
warranties and agreements which shall be deemed to have been made as of the
related Closing Date:
a) neither
the Seller nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of any Mortgage Loans, any interest
in
any Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security with, any Person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of any
Mortgage Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any Person to act, in such manner with respect to the Mortgage Loans;
and
b) the
Seller has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Purchaser.
SECTION
7. Representation,
Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
have
been deemed to have been made as of the related Closing Date.
a) the
Purchaser understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state;
b) the
Purchaser is acquiring the Mortgage Loans for its own account only and not
for
any other Person;
c) the
Purchaser considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
3
d) the
Purchaser has been furnished with all information regarding the Mortgage Loans
which it has requested from the Seller or the Company; and
e) neither
the Purchaser nor anyone acting on its behalf offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage
Loan or any other similar security to, or solicited any offer to buy or accept
a
transfer, pledge or other disposition of any Mortgage Loan, any interest in
any
Mortgage Loan or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loan, any interest in any Mortgage
Loan
or any other similar security with, any Person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act or which would render the disposition of any
Mortgage Loan a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any Person to act, in such manner with respect to the Mortgage
Loans.
SECTION
8. Closing.
The
closing for the purchase and sale of each Loan Package, shall take place on
the
related Closing Date. At the Purchaser's option, the Closing shall be either:
by
telephone, confirmed by letter or wire as the parties shall agree; or conducted
in Person, at such place as the parties shall agree.
The
closing shall be subject to each of the following conditions:
a) all
of
the representations and warranties of the Seller under this Agreement and under
the Seller's Warranties and Servicing Agreement shall be true and correct as
of
the Closing Date and no event shall have occurred which, with notice or the
passage of time, would constitute a default under this Agreement or an Event
of
Default under the related Seller's Warranties and Servicing
Agreement;
b) the
Purchaser shall have received, or the Purchaser's attorneys shall have received
in escrow, all Closing Documents as specified in Section 9 of this Agreement,
in
such forms as are agreed upon and acceptable to the Purchaser, duly executed
by
all signatories other than the Purchaser as required pursuant to the respective
terms thereof;
c) the
Seller shall have delivered and released to the Custodian all documents required
under the Seller's Warranties and Servicing Agreement; and
d) all
other
terms and conditions of this Agreement and the Seller's Warranties and Servicing
Agreement shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on such
Closing Date the related Purchase Price, plus accrued interest pursuant to
Section 4 of this Agreement, by wire transfer of immediately available funds
to
the account designated by the Seller.
4
SECTION
9. Closing
Documents.
With
respect to the initial closing date, the closing documents shall consist of
the
following documents:
|
1.
|
the
Seller's Warranties and Servicing Agreement, in three
counterparts;
|
|
2.
|
this
Agreement in three counterparts;
|
|
3.
|
an
originally executed Side Letter (the “Side Letter”) for the related Loan
Package regarding repurchase price by and between the Seller and
the
Purchaser dated as of May 1, 2006;
|
|
4.
|
the
originally executed Custodial Assignment and Assumption Agreement
by and
between the Purchaser and Seller dated as of May 30, 2006 in three
counter-parts assigning the Purchaser's rights as Initial Servicer
under
the Custodial Agreement, dated as of April 1, 2000, by and between
the
Purchaser, as owner and the Initial Servicer and Xxxxx Fargo Bank,
N.A.,
successor by merger to Xxxxx Fargo Bank Minnesota, N.A. (the
"Custodian");
|
|
5.
|
the
Mortgage Loan Schedule for the related Loan Package, one copy to
be
attached to each counterpart of the related Assignment and Conveyance
Agreement and to each counterpart of the Custodial Agreement, as
the
Mortgage Loan Schedule thereto;
|
| 6. |
an
Officer’s Certificate of the
Seller;
|
| 7. |
a
trust receipt and certification, as required under the Custodial
Agreement;
|
|
8.
|
an
Opinion of Counsel of the Seller, in the form of Exhibit 1 hereto;
|
|
9.
|
an
Escrow Account Certification;
|
|
10.
|
a
Custodial Account Certification;
and
|
| 11. |
an
Assignment and Conveyance Agreement for the related Mortgage Loans.
|
On
each
subsequent Closing Date, the following documents:
|
1.
|
the
Mortgage Loan Schedule for the related Loan
Package;
|
|
2.
|
an
Assignment and Conveyance Agreement of Mortgage Loans for the related
Loan
Package;
|
|
3.
|
a
trust receipt and/or an initial certification, as required under
the
Custodial Agreement;
|
5
|
4.
|
an
originally executed Side Letter (the “Side Letter”) for the related Loan
Package regarding repurchase price by and between the Seller and
the
Purchaser;
|
|
5.
|
if
requested by the Purchaser, an Opinion of Counsel of the Seller,
in the
form of Exhibit 1 hereto;
|
|
6.
|
if
requested by the Purchaser, an Officer’s Certificate of the Seller;
and
|
|
7.
|
the
originally executed Custodial Assignment and Assumption Agreement
by and
between the Purchase and Seller dated as of the respective Closing
Date in
three counter-parts assigning the Purchaser's rights as Initial Servicer
under the Custodial Agreement, dated as of April 1, 2000, by and
between
the Purchaser, as owner and the Initial Servicer and Xxxxx Fargo
Bank,
N.A., successor by merger to Xxxxx Fargo Bank Minnesota, N.A. (the
"Custodian");.
|
SECTION
10. Costs.
The
Purchaser shall pay any commissions due its salesmen, the legal fees and
expenses of its attorneys and the costs and expenses associated with the
Custodian. The Seller shall be responsible for reasonable costs and expenses
associated with any preparation and recording of the initial Assignments of
Mortgage. All other costs and expenses incurred in connection with the transfer
and delivery of the Mortgage Loans, including fees for title policy endorsements
and continuations and the Seller's attorney fees, shall be paid by the
Seller.
SECTION
11. Servicing
The
Mortgage Loans shall be serviced by the Seller in accordance with the terms
of
the applicable Seller's Warranties and Servicing Agreement. The Seller shall
be
entitled to servicing fees calculated as provided therein, at the Servicing
Fee
Rate shown on the first page of this Agreement unless otherwise agreed by the
parties.
SECTION
12. Financial
Statements.
The
Seller understands that in connection with the Purchaser's marketing of the
Mortgage Loans, the Purchaser may request from the Seller and make available
to
prospective purchasers a Consolidated Statement of Operations of the Seller
for
the most recently completed two (2) fiscal years respecting which such a
statement is available, as well as a Consolidated Statement of Condition at
the
end of the last two (2) fiscal years covered by such Consolidated Statement
of
Operations. The Purchaser, upon request, shall also make available any
comparable interim statements to the extent any such statements have been
prepared by the Seller in a format intended or otherwise suitable for the public
at large. The Seller, upon request, agrees to furnish promptly to the Purchaser
copies of the statements specified above. The Seller shall also make available
information on its servicing performance with respect to loans in its own
portfolio and loans serviced for others (if any), including foreclosure and
delinquency ratios.
The
Seller also agrees to allow access to a knowledgeable (as shall be determined
by
the Seller) financial or accounting officer for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller or the financial statements of the Seller.
6
SECTION
13. Mandatory
Delivery.
The sale
and delivery on each Closing Date of the related Mortgage Loans described on
the
respective Mortgage Loan Schedule is mandatory, it being specifically understood
and agreed that each Mortgage Loan is unique and identifiable on the date hereof
and that an award of money damages would be insufficient to compensate the
Purchaser for the losses and damages incurred by the Purchaser (including
damages to prospective purchasers of the Mortgage Loans) in the event of the
Seller's failure to deliver the Mortgage Loans on or before such Closing Date.
All rights and remedies of the Purchaser under this Agreement are distinct
from,
and cumulative with, any other rights or remedies under this Agreement or
afforded by law or equity and all such rights and remedies may be exercised
concurrently, independently or successively.
SECTION
14. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address shown on the first page hereof, or such other address
as
may hereafter be furnished to the other party by like notice. Any such demand,
notice of communication hereunder shall be deemed to have been received on
the
date delivered to or received at the premises of the addressee (as evidenced,
in
the case of registered or certified mail, by the date noted on the return
receipt).
SECTION
15. Severability
Clause.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
SECTION
16. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument. The parties agree that this Agreement
and signature pages thereof may be transmitted between them by facsimile and
that faxed signatures may constitute original signatures and that a faxed
signature page containing the signature of an authorized individual (faxed
or
original) is binding on the respective parties.
XXXXXXX
00. Xxxxx
of Delivery and Governing Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with the laws of the State of New York, except to
the
extent preempted by Federal Law.
7
Each
of
the Seller and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect of any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Seller or the Purchaser. This provision is a
material inducement for the Purchaser to enter into this Agreement.
SECTION
18. Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Without
limiting the generality of the foregoing, the Seller shall reasonably cooperate
with the Purchaser in connection with the initial resales of the Mortgage Loans
by the Purchaser. In that connection, the Seller shall provide to the Purchaser:
(i) any and all information and appropriate verification of information, whether
through letters of its auditors and counsel or otherwise, as the Purchaser
shall
reasonably request, and (ii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors and certificates of public
officials or officers of the Seller as are reasonably believed necessary by
the
Purchaser in connection with such resales. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Purchaser
in
writing of the estimated amount of such expense. The Purchaser shall reimburse
the Seller for any such expense following its receipt of appropriate details
thereof.
SECTION
19. Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the Seller
is
selling, an undivided 100% ownership interest in the Mortgage Loans and not
a
debt instrument of the Seller or another security. Accordingly, the parties
hereto each intend to treat the transaction for Federal income tax purposes
as a
sale by the Seller, and a purchase by the Purchaser, of the Mortgage Loans.
The
Purchaser shall have the right to review the Mortgage Loans and the related
Custodial Mortgage Files to determine the characteristics of the Mortgage Loans
which shall affect the Federal income tax consequences of owning the Mortgage
Loans and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
SECTION
20. Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. This Agreement shall not be assigned, pledged or hypothecated
by the Seller to a third party without the consent of the
Purchaser.
SECTION
21. Waivers;
Other Agreements.
No term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
8
SECTION
22. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
23. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
c) references
herein to "Articles", "Sections", "Subsections", "Paragraphs", and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
e) the
words
"herein", "hereof", "hereunder" and other words of similar import refer to
this
Agreement as a whole and not to any particular provision; and
f) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
SECTION
24. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
[Signatures
Follow]
9
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
XXXXXX
BROTHERS BANK, FSB
(Purchaser)
By:
___________________________
Name:
_________________________
Title:
__________________________
XXXXX
FARGO BANK, N.A.
(Seller)
By:
___________________________
Name:
_________________________
Title:
__________________________
10
EXHIBIT
1
FORM
OF
OPINION OF COUNSEL
@
@
@
@
Re: Mortgage
Loan Sale by Xxxxx Fargo Bank, N.A. (the “Company”) to Xxxxxx Brothers Bank, FSB
(the “Purchaser”) of fixed rate and adjustable rate, first and second lien
mortgage loans (the “Mortgage Loans”) pursuant to that certain Master Seller’s
Warranties and Servicing Agreement and Master Mortgage Loan Purchase Agreement
by and between the Company and the Purchaser, dated as of May 1,
2006.
Dear
Sir/Madam:
I
am
Associate General Counsel of Xxxxx Fargo Bank, N.A. and have acted as counsel
to
Xxxxx Fargo Bank, N.A. (the “Company”), with respect to certain matters in
connection with the sale by the Company of Mortgage Loans pursuant to that
certain Master Seller’s Warranties and Servicing Agreement and Master Mortgage
Loan Purchase Agreement by and between the Company and Xxxxxx Brothers Bank,
FSB
(the “Purchaser”), dated as of May 1, 2006, (the “Agreements”), which sale is in
the form of whole Mortgage Loans. Capitalized terms not otherwise defined herein
have the meanings set forth in the Master Seller’s Warranties and Servicing
Agreement.
I
have
examined the following documents:
|
1.
|
the
Master Seller’s Warranties and Servicing
Agreement;
|
|
2.
|
the
Master Mortgage Loan Purchase
Agreement;
|
|
3.
|
the
Custodial Agreement;
|
|
4.
|
the
form of endorsement of the Mortgage Notes;
and
|
|
5.
|
such
other documents, records and papers as I have deemed necessary and
relevant as a basis for this
opinion.
|
To
the
extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreements.
I
have assumed the authenticity of all documents submitted to me as originals,
the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
Based
upon the foregoing, it is my opinion that:
|
1.
|
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States and is qualified
to transact business.
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Agreements, the Custodial Agreement and all requisite power, authority
and
legal right to execute and deliver the Agreements, the Custodial
Agreement
and the Mortgage Loans, and to perform and observe the terms and
conditions of such instruments.
|
|
3.
|
Each
person who, as an officer or attorney-in-fact of the Company, signed
(a)
the Agreements, each dated as of May 1, 2005, by and between the
Company
and the Purchaser, and (b) any other document delivered prior hereto
or on
the date hereof in connection with the sale and servicing of the
Mortgage
Loans in accordance with the Agreements was, at the respective times
of
such signing and delivery, and is, as of the date hereof, duly elected
or
appointed, qualified and acting as such officer or attorney-in-fact,
and
the signatures of such persons appearing on such documents are their
genuine signatures.
|
|
4.
|
Each
of the Agreements, the Custodial Agreement, and the Mortgage Loans,
has
been duly authorized, executed and delivered by the Company and is
a
legal, valid and binding agreement enforceable in accordance with
its
terms against the Company, subject to the effect of insolvency,
liquidation, conservatorship and other similar laws administered
by the
Federal Deposit Insurance Corporation affecting the enforcement of
contract obligations of insured banks and subject to the application
of
the rules of equity, including those respecting the availability
of
specific performance, none of which will materially interfere with
the
realization of the benefits provided thereunder or with the Purchaser’s
ownership of the Mortgage Loans.
|
|
5.
|
The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original or facsimile signature in order
to
complete the transactions contemplated by the Agreements and the
Custodial
Agreement in order to execute the endorsements to the Mortgage Notes
and
the assignments of the Mortgages, and the original or facsimile signature
of the officer at the Company executing the Agreements, the Custodial
Agreement, the endorsements to the Mortgage Notes and the assignments
of
the Mortgages represents the legal and valid signature of said officer
of
the Company.
|
|
6.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Agreements, the Custodial Agreement or the sale and delivery of the
Mortgage Loans or the consummation of the transactions contemplated
by the
Agreements and the Custodial Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
|
|
7.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of the Agreements and the Custodial Agreement, will
conflict
with or results in or will result in a breach of or constitutes or
will
constitute a default under the charter or by-laws of the Company,
the
terms of any indenture or other agreement or instrument to which
the
Company is a party or by which it is bound or to which it is subject,
or
violates any statute or order, rule, regulations, writ, injunction
or
decree of any court, governmental authority or regulatory body to
which
the Company is subject or by which it is
bound.
|
|
8.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
my knowledge, threatened against the Company which, in my opinion,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment
of the
right or ability of the Company to carry on its business substantially
as
now conducted or in any material liability on the part of the Company
or
which would draw into question the validity of the Agreements, and
the
Custodial Agreement, or of any action taken or to be taken in connection
with the transactions contemplated thereby, or which would be likely
to
impair materially the ability of the Company to perform under the
terms of
the Agreements and the Custodial
Agreement.
|
|
9.
|
For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless
the
potential litigant or governmental authority has manifested to the
legal
department of the Company or an employee of the Company responsible
for
the receipt of process a present intention to initiate such proceedings;
nor have I regarded any legal or governmental actions, investigations
or
proceedings as including those that are conducted by state or federal
authorities in connection with their routine regulatory activities.
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient fully to transfer all right, title
and
interest of the Company thereto as noteholder and mortgagee, apart
from
the rights to service the Mortgage Loans pursuant to the
Agreements.
|
|
10.
|
The
form of endorsement that is to be used with respect to the Mortgage
Loans
is legally valid and sufficient to duly endorse the Mortgage Notes
to the
Purchaser. Upon the completion of the endorsement of the Mortgage
Notes
and the completion of the assignments of the Mortgages, and the recording
thereof, the endorsement of the Mortgage Notes, the delivery to the
Custodian of the completed assignments of the Mortgages, and the
delivery
of the original endorsed Mortgage Notes to the Custodian would be
sufficient to permit the entity to which such Mortgage Note is initially
endorsed at the Purchaser’s direction, and to whom such assignment of
Mortgages is initially assigned at the Purchaser’s direction, to avail
itself of all protection available under applicable law against the
claims
of any present or future creditors of the Company, and would be sufficient
to prevent any other sale, transfer, assignment, pledge or hypothecation
of the Mortgages and the Mortgage Notes by the Company from being
enforceable.
|
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
Sincerely,
@
@
@/@
AMENDMENT
NO. 1
TO
THE MASTER SELLER’S WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment
No.
1
(the
“Amendment”), dated as of August 1, 2006 (the “Amendment Date”), by and among
XXXXXX BROTHERS BANK, FSB (the “Purchaser”) and XXXXX FARGO BANK, N.A. (the
“Company”) to that certain Master Seller’s Warranties and Servicing Agreement
(the “Master SWSA”), dated as of May 1, 2006, between the Purchaser and the
Company.
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed, subject to the terms and conditions
of this Amendment that the Master SWSA be amended to reflect certain agreed
upon
revisions to the terms of the Master SWSA.
Accordingly,
the Company and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Master SWSA is
hereby
amended as follows:
| 1. |
A
new definition is hereby added to Article I (Definitions) of the
Master
SWSA:
|
Company
Mortgage Loans:
A
Mortgage Loan that has been underwritten in accordance with the Underwriting
Guidelines.
|
2.
|
A
new definition is hereby added to Article I (Definitions) of the
Master
SWSA:
|
Exception
Mortgage Loans:
A
Mortgage Loan that has been underwritten in accordance with the Underwriting
Guidelines, but for which one or more exceptions to those guidelines
have been allowed. Each Exception Mortgage Loan, along with the applicable
exceptions, shall be identified on Schedule II attached to the related
Assignment and Conveyance Agreement.
3. The
definition of “Mortgage
Loan”
in
Article I (Definitions) of the Master SWSA is amended by inserting the sentence
“The
Mortgage Loans shall include the Exception Mortgage Loans.” at
the
end of the definition.
4. The
definition of “Retained
Mortgage File”
in
Article I (Definitions)
of the
Master SWSA is amended by deleting the language “items 6 through 9 of Exhibit C”
and inserting in its place “items 6 through 10 of Exhibit C”.
5. The
definition of “Servicing
File”
in
Article I (Definitions)
of the
Master SWSA is amended by deleting the language “items 10 through 25 of Exhibit
C” and inserting in its place “items 11 through 26 of Exhibit C”.
6. Section 3.02 (Representations and Warranties Regarding Individual Mortgage Loans) of the Master SWSA is amended by deleting the following language thereof:
“(vv) Contents
of the Retained Mortgage File.
The
Retained Mortgage File contains the documents listed as items 6 through 9
of
Exhibit C attached hereto;”
and
inserting in its place:
“(vv) Contents
of the Retained Mortgage File.
The
Retained Mortgage File contains the documents listed as items 6 through 10
of
Exhibit C attached hereto;”
7. Section
6.05 (Annual
Independent Public Accountant’s Servicing Report)
of the
Master SWSA is amended by deleting the following language thereof:
“Except
with respect to any Mortgage Loans that are the subject of a Securitization
Transaction, on or before March 1, of each calendar year, commencing in 2007,
the Company, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to each Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing
of the
mortgage loans similar in nature and that such firm is of the opinion that
the
provisions of this or similar agreements have been complied with, and that,
on
the basis of such examination conducted substantially in compliance with
the
Uniform Single Attestation Program for Mortgage Bankers, nothing has come
to
their attention which would indicate that such servicing has not been conducted
in compliance therewith, except for (i) such exceptions as such firm shall
believe to be immaterial, and (ii) such other exceptions as shall be set
forth
in such statement. By providing Purchaser a copy of a Uniform Single Attestation
Program Report from their independent public accountant's on an annual basis,
Company shall be considered to have fulfilled its obligations under this
Section
6.05.”
and
inserting in its place:
“[RESERVED]”
8. Exhibit
C
(Contents
of Each Custodial Mortgage File, Retained Mortgage File and Servicing
File)
of the
Master SWSA is amended by inserting the following under the heading “With
respect to each Retained Mortgage File”:
“10. For
each
Cooperative Loan, the original or a seller certified true copy of the
following:
The
original Pledge Agreement entered into by the Mortgagor with respect to such
Cooperative Loan;
2
UCC-3
assignment in blank (or equivalent instrument), sufficient under the laws
of the
jurisdiction where the related Cooperative Apartment is located to reflect
of
record the sale and assignment of the Cooperative Loan to the
Purchaser;
Original
assignment of Pledge Agreement in blank showing a complete chain of assignment
from the originator of the related Cooperative Loan to the Company;
Original
Form UCC-1 and any continuation statements with evidence of filing thereon
with
respect to such Cooperative Loan;
Cooperative
Shares with a Stock Certificate in blank attached;
Original
Proprietary Lease;
Original
Assignment of Proprietary Lease, in blank, and all intervening assignments
thereof;
Original
recognition agreement of the interests of the mortgagee with respect to the
Cooperative Loan by the Cooperative, the stock of which was pledged by the
related Mortgagor to the originator of such Cooperative Loan; and
Originals
of any assumption, consolidation or modification agreements relating to any
of
the items specified above.”
9. Exhibit
C
(Contents
of Each Custodial Mortgage File, Retained Mortgage File and Servicing
File)
of the
Master SWSA is amended by renumbering items 10 through 25 with 11 through
26.
10. The
Master SWSA is hereby further modified by replacing each reference to
“Underwriting Guidelines” with “Underwriting Guidelines (other than exceptions
made for Exception Mortgage Loans)”.
11. Except
as
expressly amended and modified by this Amendment, the Master SWSA shall continue
to be, and shall remain, in full force and effect in accordance with its
terms.
12. This
Amendment shall be construed in accordance with the laws of the State of
New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
13. This
Amendment may be executed in one or more counterparts and by different parties
hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement.
14. This
Amendment shall insure to the benefit of and be binding upon the Purchaser
and
the Company under the Master SWSA, and their respective successors and permitted
assigns.
15. Any
capitalized term, not otherwise herein defined, shall have the meaning set
forth
in the Master SWSA.
3
IN
WITNESS WHEREOF, the parties 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
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Company |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
4
AMENDMENT
NO. 2
TO
THE MASTER SELLER’S WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment
No.
2
(the
“Amendment”), dated as of July 1, 2007 (the “Amendment Date”), by and among
XXXXXX BROTHERS BANK, FSB (the “Purchaser”) and XXXXX FARGO BANK, N.A. (the
“Company”) to that certain Master Seller’s Warranties and Servicing Agreement
(the “Master SWSA”), dated as of May 1, 2006, between the Purchaser and the
Company.
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed, subject to the terms and conditions
of this Amendment that the Master SWSA be amended to reflect certain agreed
upon
revisions to the terms of the Master SWSA.
Accordingly,
the Company and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Master SWSA
is hereby
amended as follows:
1. Article
I (Definitions) of the Master SWSA is hereby amended by inserting the following
new definitions:
Company
Underwriting Guidelines:
The
underwriting guidelines of the Company applicable to the Company Mortgage
Loans
in each Loan Package, as provided to the Purchaser by the Company.
Data
File Elements:
The
data fields set forth on Exhibit D with respect to each Mortgage Loan,
in
relation to each Transaction.
Third-Party
Mortgage Loan:
A
Mortgage Loan that has been underwritten in accordance with the related
Third-Party Underwriting Guidelines.
Third-Party
Underwriting Guidelines:
The
underwriting guidelines of a Third-Party Originator, as amended from time
to
time, applicable to the related Third-Party Mortgage Loans in a Loan Package,
as
provided to the Purchaser by the Company upon request. The Third-Party
Underwriting Guidelines for each Third-Party Mortgage Loan shall be attached
to
the respective Assignment and Conveyance Agreement.
Unverified
Information:
With
respect to the Mortgage Loans listed on Schedule
I
to the
related Assignment and Conveyance Agreement, information regarding the
Mortgagor’s income, source of income, or assets that is stated on the loan
application by the Mortgagor but not verified in the origination process,
pursuant to the applicable Underwriting Guidelines.
2. Article
I
(Definitions) of the Master SWSA is hereby amended by replacing the definition
of “Company Mortgage Loans” with the following:
Company
Mortgage Loans:
A
Mortgage Loan that has been underwritten in accordance with the Company
Underwriting Guidelines.
3. Article
I
(Definitions) of the Master SWSA is hereby amended by replacing the definition
of “Data File” with the following:
Data
File:
The
electronic data file prepared by the Company and delivered to the Purchaser
which contains the Data File Elements as set forth on Exhibit
D
with
respect to each Mortgage Loan, in relation to each Transaction.
4. Article
I
(Definitions) of the Master SWSA is hereby amended by replacing the definition
of “Mortgage
Loan”
with
the following:
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on
the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan. The
Mortgage
Loans shall include the Company Mortgage Loans, Exception Mortgage Loans
and
Third Party Mortgage Loans.
5. Article
I (Definitions) of the Master SWSA is hereby amended by deleting the definition
of “Underwriting Guidelines” in its entirety.
6. Article
III (Representations
and Warranties Regarding Individual Mortgage Loans)
of the
Master SWSA is amended by deleting Section 3.02(a) in its entirety and
replacing
it with the following:
| (a) |
Mortgage
Loans as Described.
|
The
information set forth in the respective Mortgage Loan Schedule and Schedule
I
to the
related Assignment and Conveyance Agreement and the information contained
on the
Data File Elements contained on the Data File delivered to the Purchaser
is true
and correct, provided that the Company makes no representation or warranty
as to
the accuracy of Unverified Information, as long as the Company has performed
a
reasonableness check with respect to the Unverified Information 1) as it
relates
to the Mortgagor’s type of occupation, and length of employment at such
occupation and income levels that are reasonable given the Mortgagor’s
occupation and length of time in the industry and 2) as it relates to the
Mortgagor’s assets, the Company has made a reasonable determination related to
the Unverified Information, which determination would correlate the level
of
assets with the Mortgagor’s level of income;
2
7. Article
III (Representations
and Warranties Regarding Individual Mortgage Loans)
of the
Master SWSA is amended by deleting Section 3.02(h) in its entirety and
replacing
it with the following:
| (h) |
No
Fraud.
|
All
the
documents executed in connection with the Mortgage Loan including, but
not
limited to, the Mortgage Note and the Mortgage are free of fraud and any
misrepresentation (except with respect to the accuracy of Unverified Information
contained in any documents, as long as the Company has performed a
reasonableness check with respect to the Unverified Information 1) as it
relates
to the Mortgagor’s type of occupation, and length of employment at such
occupation and income levels that are reasonable given the Mortgagor’s
occupation and length of time in the industry and 2) as it relates to the
Mortgagor’s assets, the Company has made a reasonable determination related to
the Unverified Information, which determination would correlate the level
of
assets with the Mortgagor’s level of income.), are signed by the persons they
purport to be signed by, and witnessed or, as appropriate, notarized by
the
persons whose signatures appear as witnesses or notaries, and each such
document
constitutes the valid and binding legal obligation of the signatories and
is
enforceable in accordance with its terms;
8. Article
III (Representations
and Warranties Regarding Individual Mortgage Loans)
of the
Master SWSA is amended by deleting Section 3.02(t) in its entirety and
replacing
it with the following:
| (t) |
Payment
Terms.
|
Except
with respect to the Interest Only Mortgage Loans, principal payments commenced
no more than sixty (60) days after the funds were disbursed to the Mortgagor
in
connection with the Mortgage Loan. Each Mortgage Loan is payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient (except with respect to Balloon Loans and
Interest Only Mortgage Loans) to amortize the Mortgage Loan fully by the
stated
maturity date set for in the Mortgage Note over an original term to maturity
of
not more than thirty (30) years. With respect to each Balloon Loan, the
Mortgage
Loan is payable in equal monthly installments of principal and interest
based on
a fifteen (15), thirty (30) or forty (40) year amortization schedule, as
set
forth in the related Mortgage Note, and a final lump sum payment substantially
greater than the preceding Monthly Payment is required which is sufficient
to
amortize the remaining principal balance of the Balloon Loan. As to each
Adjustable Rate Mortgage Loan on each applicable Adjustment Date, the Mortgage
Interest Rate will be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of 0.125% indicated
by
the Mortgage Note; provided that the Mortgage Interest Rate will not increase
or
decrease by more than the Periodic Interest Rate Cap on any Adjustment
Date, and
will in no event exceed the maximum Mortgage Interest Rate or be lower
than the
minimum Mortgage Interest Rate listed on the Mortgage Note. As to each
Adjustable Rate Mortgage Loan that is not an Interest Only Mortgage Loan,
each
Mortgage Note requires a monthly payment which is sufficient, during the
period
prior to the first adjustment to the Mortgage Interest Rate, to fully amortize
the outstanding principal balance as of the first day of such period over
the
then remaining term of such Mortgage Note and to pay interest at the
related Mortgage Interest Rate. As to each Adjustable Rate Mortgage Loan,
if the
related Mortgage Interest Rate changes on an Adjustment Date, with respect
to an
Interest Only Mortgage Loan, on an Adjustment Date following the related
interest only period, the then outstanding principal balance will be reamortized
over the remaining life of such Mortgage Loan. No Mortgage Loan contains
terms
or provisions which would result in negative amortization;
3
9. Article
III (Representations
and Warranties Regarding Individual Mortgage Loans)
of the
Master SWSA is amended by deleting Section 3.02(hh) in its entirety and
replacing it with the following:
| (hh) |
Underwriting.
|
|
(a)
|
Each
Company Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines;
|
|
(b)
|
Each
Exception Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines (but with certain specified
exceptions);
|
|
(c)
|
Each
Third-Party Mortgage Loan was underwritten in accordance with
the
Third-Party Underwriting Guidelines; and
|
|
(d)
|
Each
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or
Xxxxxx Mae
|
10. Article
III (Representations
and Warranties Regarding Individual Mortgage Loans)
of the
Master SWSA is amended by deleting Section 3.02(ii) in its entirety and
replacing it with the following:
| (ii) |
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding as of the date the Mortgage Loan was originated or as of the
Closing
Date and the proceeds of the Mortgage Loan were distributed.
11. Article
IV (Administration
and Servicing of Mortgage Loans)
of the
Master SWSA is amended by deleting the first paragraph of Section 4.10
(Maintenance of Hazard Insurance) in its entirety and replacing it with
the
following:
4
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to
the
lesser of (i) 100% of the insurable value, on a replacement cost basis,
of the
improvements on the related Mortgaged Property, or (ii) the greater of
(a) the
outstanding principal balance of the Mortgage Loan or (b) an amount such
that
the proceeds of such insurance shall be sufficient to avoid the application
to
the Mortgagor or loss payee of any coinsurance clause under the policy.
In the
event a hazard insurance policy shall be in danger of being terminated
the
Company shall notify the related Mortgagor that the Mortgagor must obtain
hazard
insurance coverage, and if said Mortgagor fails to obtain the required
hazard
insurance coverage within forty-five (45) days after such notification,
the
Company shall immediately force place the required hazard insurance, without
any
lapse of coverage, on the Mortgagor’s behalf, or in the event the insurer shall
cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company shall
notify
the Purchaser and the related Mortgagor, and shall use its best efforts,
as
permitted by applicable law, to obtain from another qualified insurer a
replacement hazard insurance policy substantially and materially similar
in all
respects to the original policy. In no event, however, shall a Mortgage
Loan be
without a hazard insurance policy at any time, subject only to Section
4.11
hereof.
12. Article
IV (Administration
and Servicing of Mortgage Loans)
of the
Master SWSA is amended by deleting the fourth paragraph of Section 4.10
(Maintenance of Hazard Insurance) in its entirety and replacing it with
the
following:
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks
not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged
Property.
13. Article
IV (Administration
and Servicing of Mortgage Loans)
of the
Master SWSA is amended by deleting Section 4.13 (Inspections) in its entirety
and replacing it with the following:
If
any
Mortgage Loan is more than sixty (60) days delinquent and the Company has
not
entered into any temporary alternative repayment arrangements (if permitted
by any related Securitization Transaction)
with the
related Mortgagor, the Company or its agent shall inspect the Mortgaged
Property
in accordance with Accepted Servicing Practices or as may be required by
the
primary mortgage guaranty insurer to assure that the value of the Mortgaged
Property is being preserved. The Company shall keep a record of each such
inspection and, upon written request, shall provide the Purchaser with
an
electronic report of each such inspection.
5
14. Article
IX (Agency
Sales, Securitization Transactions and Whole Loan Transfers)
of the
Master SWSA is amended by inserting a new subclause (h) in Section 9.01
(Removal
of Mortgage Loans from Inclusion Under this Agreement Upon an Agency Sale,
Whole
Loan Transfer or Securitization Transaction) as follows:
(h) In
connection with an Agency Transfer, the Purchaser shall provide the Company
with
a list of the Mortgage Loans, including the scheduled principal balance
of each
Mortgage Loan, to be included in such Agency Transfer. Upon receipt of
such
Mortgage Loan list, the Company shall provide the Purchaser with the
seller/servicer number to be used by the Company to deliver such Mortgage
Loans
to the related Agency. The Purchaser shall provide such seller/servicer
number
to the related Agency. The Purchaser shall be responsible for providing
accurate
information, as specified above, to the Company and the related Agency.
If the
Purchaser fails to provide accurate information, the Purchaser shall be
responsible for fees and penalties pursuant to the terms of the related
transfer
documents.
15. The
Master SWSA is hereby further modified by replacing each reference to
“Underwriting Guidelines” with “Company Underwriting Guidelines (other than
exceptions made for Exception Mortgage Loans) with respect to Company Mortgage
Loans or the Third-Party Underwriting Guidelines with respect to Third-Party
Mortgage Loans, as applicable”.
16. Exhibit
D
(Data
File)
of the
Master SWSA is amended by deleting it in its entirety and replacing it
with
Exhibit A attached hereto.
17. Except
as
expressly amended and modified by this Amendment, the Master SWSA shall
continue
to be, and shall remain, in full force and effect in accordance with its
terms.
18. This
Amendment shall be construed in accordance with the laws of the State of
New
York, and the obligations, rights and remedies of the parties hereunder
shall be
determined in accordance with such laws.
19. This
Amendment may be executed in one or more counterparts and by different
parties
hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement.
20. This
Amendment shall insure to the benefit of and be binding upon the Purchaser
and
the Company under the Master SWSA, and their respective successors and
permitted
assigns.
21. Any
capitalized term, not otherwise herein defined, shall have the meaning
set forth
in the Master SWSA.
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto
by
their respective officers thereunto duly authorized as of the day and year
first
above written.
6
|
XXXXXX
BROTHERS BANK, FSB
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Company |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
7
Exhibit
A
EXHIBIT
D
Data
File
DATA
FILE
ELEMENTS
|
(1)
|
the
Mortgage Loan number;
|
|
(2)
|
the
city, state, county and zip code;
|
|
(3)
|
a
code indicating whether the Mortgaged Property is a single
family
residence, a 2-4 family dwelling, a PUD, a cooperative, a
townhouse,
manufactured housing or a unit in a condominium
project;
|
|
(4)
|
the
Mortgage Interest Rate as of the Cut-off
Date;
|
|
(5)
|
the
current Monthly Payment;
|
|
(6)
|
original
loan term, number of months;
|
|
(7)
|
the
stated maturity date (and, if different, the stated maturity
date
indicated on the Mortgage Note on its date of
origination);
|
|
(8)
|
the
Stated 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;
|
|
(9)
|
the
Loan-to-Value Ratio;
|
|
(10)
|
a
code indicating whether the Mortgage Loan is an Interest
Only Mortgage
Loan;
|
|
(11)
|
a
code indicating whether the Mortgage Loan is a temporary
buydown (Y or
N);
|
|
(12)
|
the
Servicing Fee Rate;
|
|
(13)
|
a
code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
|
|
(14)
|
a
code indicating whether the Mortgage Loan is a Time$aver® Mortgage Loan (Y
or N);
|
|
(15)
|
a
code indicating a Co-Borrower (Y or
N);
|
|
(16)
|
a
code indicating whether the Mortgaged Property is owner-occupied,
a second
home or an investment property;
|
8
| (17) |
the
remaining months to maturity from the Cut-off Date, based
on the original
amortization schedule;
|
| (18) |
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
| (19) |
the
last Due Date on which a Monthly Payment was actually applied
to the
actual principal balance;
|
| (20) |
the
original principal amount of the Mortgage Loan;
|
| (21) |
a
code indicating the purpose of the loan (i.e., purchase,
financing,
rate/term refinancing, cash-out refinancing);
|
| (22) |
the
Mortgage Interest Rate at origination;
|
| (23) |
a
code indicating the documentation style (i.e., full (providing
two (2)
years employment verification - two (2) years W-2’s and current pay stub
or two (2) years 1040’s for self employed borrowers), alternative or
reduced);
|
| (24) |
a
code indicating if the Mortgage Loan is subject to a PMI
Policy;
|
| (25) |
the
Appraised Value of the Mortgage
Property;
|
| (26) |
the
sale price of the Mortgaged Property, if
applicable;
|
| (27) |
the
Mortgagor’s underwriting FICO
Score;
|
| (28) |
term
of Prepayment Charge in years;
|
| (29) |
a
code indicating the product type;
|
| (30) |
a
code indicating the credit grade of the Mortgage
Loan;
|
| (31) |
the
unpaid balance of the Mortgage Loan as of the close of business
on the
Cut-off Date, after deduction of all payments of
principal;
|
| (32) |
the
Mortgage Note date of the Mortgage
Loan;
|
| (33) |
the
mortgage insurance certificate number and percentage of coverage,
if
applicable;
|
| (34) |
if
the Mortgage Loan is a MERS Mortgage Loan, the number for
each MERS
Mortgage Loan;
|
| (35) |
employer
name;
|
| (36) |
subsidy
program code;
|
| (37) |
servicer
name;
|
9
| (38) |
the
combined Loan-to-Value Ratio at
origination;
|
| (39) |
the
total Loan-to-Value Ratio;
|
| (40) |
whether
the Mortgage Loan is convertible (Y or
N);
|
| (41) |
a
code indicating whether the Mortgage Loan is a relocation
loan (Y or
N);
|
| (42) |
a
code indicating whether the Mortgage Loan is a leasehold
loan (Y or
N);
|
| (43) |
a
code indicating whether the Mortgage Loan is an Alt A loan
(Y or
N);
|
| (44) |
a
code indicating whether the Mortgage Loan is a no ratio loan
(Y or N);
|
| (45) |
a
code indicating whether the Mortgage Loan is a Pledged Asset
Mortgage Loan
(Y or N);
|
| (46) |
effective
LTV percentage for Pledged Asset Mortgage
Loans;
|
| (47) |
citizenship
type code;
|
| (48) |
a
code indicating whether the Mortgage Loan is a conforming
or
non-conforming loan, based on the original loan
balance;
|
| (49) |
the
name of the client for which the Mortgage Loan was
originated;
|
| (50) |
a
code indicating amortization type (1= Full or
2=IO);
|
| (51) |
a
code indicating interest-only terms in months for Interest
Only Mortgage
Loans;
|
| (52) |
the
remaining interest only term for Interest-Only Mortgage
Loans;
|
| (53) |
a
date when first full payment is due after interest-only period
is over for
Interest Only Mortgage Loans;
|
| (54) |
the
current monthly tax and insurance
payment;
|
|
(55)
|
a
code indicating whether the Mortgage Loan was originated
through the
correspondent, retail or wholesale
channel;
|
|
(56)
|
front
end debt-to-income ratio;
|
|
(57)
|
back
end debt-to-income ratio;
|
|
(58)
|
a
code indicating borrower or lender verification of assets
(B or
L);
|
|
(59)
|
combined
balance of the first lien and second lien mortgage loan balances,
if
applicable;
|
10
|
(60)
|
a
code indicating age of Mortgage Loan in
months;
|
|
(61)
|
a
code indicating delinquency status for last twelve (12) months
(rolling);
|
|
(62)
|
updated
FICO score;
|
|
(63)
|
a
code indicating if borrower is self-employed (Y or
N);
|
|
(64)
|
a
policy number or certificate number of the physical document
evidencing
mortgage insurance;
|
|
(65)
|
a
borrower’s prior rent or mortgage payment history (not associated
with
subject Mortgage Loan);
|
|
(66)
|
the
appraisal form used to document the Appraisal Value of the
Mortgage
Property;
|
|
(67)
|
documentation
type translated to Xxxxx’x
definition;
|
|
(68)
|
type
of asset verification utilized for decisioning the loan,
translated to
Xxxxx’x definitions;
|
|
(69)
|
documentation
type translated to Standard and Poor’s
definition;
|
|
(70)
|
type
of asset verification utilized for decisioning the loan,
translated to
Standard and Poor’s definitions;
|
|
(71)
|
documentation
type translated to Fitch’s
definition;
|
The
Company shall provide the following
For
the Home Mortgage Disclosure Act (HMDA), upon request:
|
(72)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
ethnicity;
|
|
(73)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
race;
|
|
(74)
|
lien
status;
|
|
(75)
|
for
cash-out refinance loans, the cash
purpose;
|
|
(76)
|
the
Mortgagor’s and co-Mortgagor’s (if applicable)
gender;
|
|
(77)
|
the
number of units for the property;
|
|
(78)
|
the
year in which the property was
built;
|
|
(79)
|
the
qualifying monthly income of the
Mortgagor;
|
11
|
(80)
|
the
number of bedrooms contained in the
property;
|
|
(81)
|
a
code indicating first time buyer (Y or
N);
|
|
(82)
|
the
total rental income, if any;
|
The
Company shall provide the following
for
the Adjustable Rate Mortgage Loans (if applicable):
|
(83)
|
the
maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
|
|
(84)
|
the
Periodic Interest Rate Cap;
|
|
(85)
|
the
Index;
|
|
(86)
|
the
next Adjustment Date;
|
|
(87)
|
the
Gross Margin;
|
|
(88)
|
the
lifetime interest rate cap;
|
|
(89)
|
the
initial rate cap;
|
|
(90)
|
the
first adjustment cap;
|
|
(91)
|
minimum
interest rate allowed per Mortgage
Note;
|
|
(92)
|
look-back
period (to determine loan index);
|
|
(93)
|
minimum
rate first adjustment period percent;
and
|
|
(94)
|
maximum
rate first adjustment period
percent.
|
The
Company shall provide the following
relating
to Borrower specific information, upon request and Company’s receipt of
documentation confirming Purchaser’s business need for such
information:
|
(95)
|
street
address of the Mortgaged
Property;
|
|
(96)
|
the
Mortgagor’s first and last
name;
|
|
(97)
|
the
co-Mortgagor’s first and last name, as
applicable;
|
|
(98)
|
the
Mortgagor’s date of birth; and
|
|
(99)
|
the
Mortgagor’s and co-Mortgagor’s, if applicable, social security
number.
|
12
ASSIGNMENT
AND CONVEYANCE AGREEMENT
On
this 30th
day of May, 2007, for
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx
Fargo Bank, N.A.
(the “Seller”)
as the Seller under that certain Master Mortgage Loan Purchase Agreement,
(“Purchase Agreement”) and as the Company under that certain Master Seller’s
Warranties and Servicing Agreement, as amended by Amendment No. 1 to the
Master
Seller’s Warranties and Servicing Agreement, dated August 1, 2006 (collectively,
the “Servicing Agreement”) each dated as of May 1, 2006, (collectively, the
“Agreements”)
does hereby sell, transfer, assign, set over and convey to Xxxxxx Brothers
Bank,
FSB as the Purchaser (the “Purchaser”)
under the Agreements, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to each of the Mortgage Loans listed on the related Mortgage
Loan Schedule attached hereto as Schedule
I,
together with the Custodial Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 2.03 of
the
Servicing Agreement, the Seller has delivered to the Custodian the documents
required
to be delivered under the Agreements
for each Mortgage Loan to be purchased. The Servicing Files and the Retained
Mortgage Files retained by the Seller pursuant to Section 2.01 of the Servicing
Agreement shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loans to the Purchaser.
The
Seller hereby makes the representations and warranties set forth in Section
3.01
and for each of the Mortgage Loans, Section 3.02 of the Servicing Agreement
as
of the date hereof.
In
connection with the execution of this Assignment and Conveyance Agreement,
the
Seller and the Purchaser hereby agree that the following modifications to
the
Servicing Agreement shall apply only as to the Mortgage Loans:
(a)Article
I, (Definitions), of the Servicing Agreement is hereby modified by inserting
the
following new definition:
Unverified
Information:
With
respect to the Mortgage Loans listed on the attached Exhibit
B,
information regarding the Mortgagor’s income, source of income, or assets that
is stated on the loan application by the Mortgagor but not verified in the
origination process, pursuant to the applicable Underwriting
Guidelines.
(b) Article
III, (Representations
and Warranties Remedies and Breach), of the Servicing Agreement is hereby
amended by deleting Section 3.02(a) in its entirety and replacing it with
the
following:
(a) Mortgage
Loans as Described.
The
information set forth in the respective Mortgage Loan Schedule and Exhibit
B and
the information contained on the electronic Data File delivered to the Purchaser
is true and correct, provided that the Company makes no representation or
warranty as to the accuracy of Unverified Information, as long as the Company
has performed a reasonableness check with respect to the Unverified Information
1) as it relates to the Mortgagor’s type of occupation, and length of employment
at such occupation and income levels that are reasonable given the Mortgagor’s
occupation and length of time in the industry and 2) as it relates to the
Mortgagor’s assets, the Company has made a reasonable determination related to
the Unverified Information, which determination would correlate the level
of
assets with the Mortgagor’s level of income;
(c) Article
III, (Representations
and Warranties Remedies and Breach), of the Servicing Agreement is hereby
amended by deleting Section 3.02(h) in its entirety and replacing it with
the
following:
(h) No
Fraud.
All
the
documents executed in connection with the Mortgage Loan including, but not
limited to, the Mortgage Note and the Mortgage are free of fraud and any
misrepresentation (except with respect to the accuracy of Unverified Information
contained in any documents, as long as the Company has performed a
reasonableness check with respect to the Unverified Information 1) as it
relates
to the Mortgagor’s type of occupation, and length of employment at such
occupation and income levels that are reasonable given the Mortgagor’s
occupation and length of time in the industry and 2) as it relates to the
Mortgagor’s assets, the Company has made a reasonable determination related to
the Unverified Information, which determination would correlate the level
of
assets with the Mortgagor’s level of income.), are signed by the persons they
purport to be signed by, and witnessed or, as appropriate, notarized by the
persons whose signatures appear as witnesses or notaries, and each such document
constitutes the valid and binding legal obligation of the signatories and
is
enforceable in accordance with its terms;
(d) Article
III, Section 3.02(t), of the Servicing Agreement is hereby modified by deleting
Section 3.02(t) in its entirety and replacing it with the
following:
(t) Payment
Terms.
Except
with respect to the Interest Only Mortgage Loan, principal payments commenced
no
more than sixty (60) days after the funds were disbursed to the Mortgagor
in
connection with the Mortgage Loan. Each Mortgage Loan is payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient (except with respect to Balloon Loans and
Interest Only Mortgage Loans) to amortize the Mortgage Loan fully by the
stated
maturity date set for in the Mortgage Note over an original term to maturity
of
not more than thirty (30) years. With respect to each Balloon Loan, the Mortgage
Loan is payable in equal monthly installments of principal and interest based
on
a fifteen (15), thirty (30) or forty (40) year amortization schedule, as
set
forth in the related Mortgage Note, and a final lump sum payment substantially
greater than the preceding Monthly Payment is required which is sufficient
to
amortize the remaining principal balance of the Balloon Loan. As to each
Adjustable Rate Mortgage Loan on each applicable Adjustment Date, the Mortgage
Interest Rate will be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of 0.125% indicated
by
the Mortgage Note; provided that the Mortgage Interest Rate will not increase
or
decrease by more than the Periodic Interest Rate Cap on any Adjustment Date,
and
will in no event exceed the maximum Mortgage Interest Rate or be lower than
the
minimum Mortgage Interest Rate listed on the Mortgage Note. As to each
Adjustable Rate Mortgage Loan that is not an Interest Only Mortgage Loan,
each
Mortgage Note requires a monthly payment which is sufficient, during the
period
prior to the first adjustment to the Mortgage Interest Rate, to fully amortize
the outstanding principal balance as of the first day of such period over
the
then remaining term of such Mortgage Note and to pay interest at the
related Mortgage Interest Rate. As to each Adjustable Rate Mortgage Loan,
if the
related Mortgage Interest Rate changes on an Adjustment Date, with respect
to an
Interest Only Mortgage Loan, on an Adjustment Date following the related
interest only period, the then outstanding principal balance will be reamortized
over the remaining life of such Mortgage Loan. No Mortgage Loan contains
terms
or provisions which would result in negative amortization;
(e) Article
IV, Section 4.10, Maintenance of Hazard Insurance, of the Servicing Agreement
is
hereby amended by deleting the first paragraph in its entirety and replacing
it
with the following:
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) 100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property, or (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan or (b) an amount such
that
the proceeds of such insurance shall be sufficient to avoid the application
to
the Mortgagor or loss payee of any coinsurance clause under the policy. In
the
event a hazard insurance policy shall be in danger of being terminated the
Company shall notify the related Mortgagor that the Mortgagor must obtain
hazard
insurance coverage, and if said Mortgagor fails to obtain the required hazard
insurance coverage within forty-five (45) days after such notification, the
Company shall immediately force place the required hazard insurance, without
any
lapse of coverage, on the Mortgagor’s behalf, or in the event the insurer shall
cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company shall notify
the Purchaser and the related Mortgagor, and shall use its best efforts,
as
permitted by applicable law, to obtain from another qualified insurer a
replacement hazard insurance policy substantially and materially similar
in all
respects to the original policy. In no event, however, shall a Mortgage Loan
be
without a hazard insurance policy at any time, subject only to Section 4.11
hereof.
(f) Article
IV, Section 4.10, Maintenance of Hazard Insurance, of the Servicing Agreement
is
hereby amended by deleting the fourth paragraph in its entirety and replacing
it
with the following:
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged
Property.
(g) Article
IV, Section 4.13, Inspections, of the Servicing Agreement is hereby deleted
in
its entirety and replaced with the following:
If
any
Mortgage Loan is more than sixty (60) days delinquent and the Company has
not
entered into any temporary alternative repayment arrangements (if permitted
by any related Securitization Transaction)
with the
related Mortgagor, the Company or its agent shall inspect the Mortgaged Property
in accordance with Accepted Servicing Practices or as may be required by
the
primary mortgage guaranty insurer to assure that the value of the Mortgaged
Property is being preserved. The Company shall keep a record of each such
inspection and, upon written request, shall provide the Purchaser with an
electronic report of each such inspection.
Attached
hereto as Exhibit
A
is a copy of the Underwriting Guidelines relating to the Mortgage Loans listed
on the Mortgage Loan Schedule attached hereto as Schedule
I.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreements.
This
Assignment 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.
|
XXXXXX
BROTHERS BANK, FSB
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Seller |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
Schedule
I
Mortgage
Loan Schedule
Exhibit
A
Underwriting
Guidelines
Exhibit
B
ASSIGNMENT
AND CONVEYANCE AGREEMENT
On
this 28th
day of June, 2007, for
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx
Fargo Bank, N.A.
(the “Seller”)
as the Seller under that certain Master Mortgage Loan Purchase Agreement
(“Purchase Agreement”) dated as of May 1, 2006 and as the Company under that
certain Master Seller’s Warranties and Servicing Agreement, dated as of May 1,
2006, as amended by Amendment No. 1 to the Master Seller’s Warranties and
Servicing Agreement, dated August 1, 2006 (collectively, the “Servicing
Agreement” and together with the Purchase Agreement, the “Agreements”)
does hereby sell, transfer, assign, set over and convey to Xxxxxx Brothers
Bank,
FSB as the Purchaser (the “Purchaser”)
under the Agreements, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title
and
interest of, in and to each of the Mortgage Loans listed on the Mortgage
Loan
Schedule attached hereto as Schedule
I (the “Mortgage Loans”),
together with the Custodial Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 2.03
of the
Servicing Agreement, the Seller has delivered to the Custodian the documents
required
to be delivered under the Agreements
for each Mortgage Loan to be purchased. The Servicing Files and the Retained
Mortgage Files retained by the Seller pursuant to Section 2.01 of the Servicing
Agreement shall be appropriately marked to clearly reflect the sale of
the
related Mortgage Loans to the Purchaser.
The
Seller hereby makes the representations and warranties set forth in Section
3.01
and for each of the Mortgage Loans, Section 3.02 of the Servicing Agreement
as
of the date hereof.
Attached
hereto as Exhibit
A
is a copy of the Underwriting Guidelines relating to the Mortgage Loans
listed
on the Mortgage Loan Schedule attached hereto as Schedule
I.
In
connection with the execution of this Assignment and Conveyance Agreement,
the
Seller and the Purchaser hereby agree that the following modifications
to the
Servicing Agreement shall apply only as to the Mortgage Loans:
(a)Article
I, (Definitions), of the Servicing Agreement is hereby amended by inserting
the
following new definition:
Unverified
Information:
With
respect to the Mortgage Loans listed on the attached Exhibit
B,
information regarding the Mortgagor’s income, source of income, or assets that
is stated on the loan application by the Mortgagor but not verified in
the
origination process, pursuant to the applicable Underwriting
Guidelines.
(b) Article
III (Representations
and Warranties Remedies and Breach) of the Servicing Agreement is hereby
amended
by deleting Section 3.02(a) in its entirety and replacing it with the
following:
(a) Mortgage
Loans as Described.
The
information set forth in the respective Mortgage Loan Schedule and Exhibit
B
to the
related Assignment and Conveyance Agreement and the information contained
on the
Data File delivered to the Purchaser is true and correct, provided that
the
Company makes no representation or warranty as to the accuracy of Unverified
Information, as long as the Company has performed a reasonableness check
with
respect to the Unverified Information 1) as it relates to the Mortgagor’s type
of occupation, and length of employment at such occupation and income levels
that are reasonable given the Mortgagor’s occupation and length of time in the
industry and 2) as it relates to the Mortgagor’s assets, the Company has made a
reasonable determination related to the Unverified Information, which
determination would correlate the level of assets with the Mortgagor’s level of
income;
(c) Article
III (Representations
and Warranties Remedies and Breach) of the Servicing Agreement is hereby
amended
by deleting Section 3.02(h) in its entirety and replacing it with the
following:
(h) No
Fraud.
All
the
documents executed in connection with the Mortgage Loan including, but
not
limited to, the Mortgage Note and the Mortgage are free of fraud and any
misrepresentation (except with respect to the accuracy of Unverified Information
contained in any documents, as long as the Company has performed a
reasonableness check with respect to the Unverified Information 1) as it
relates
to the Mortgagor’s type of occupation, and length of employment at such
occupation and income levels that are reasonable given the Mortgagor’s
occupation and length of time in the industry and 2) as it relates to the
Mortgagor’s assets, the Company has made a reasonable determination related to
the Unverified Information, which determination would correlate the level
of
assets with the Mortgagor’s level of income.), are signed by the persons they
purport to be signed by, and witnessed or, as appropriate, notarized by
the
persons whose signatures appear as witnesses or notaries, and each such
document
constitutes the valid and binding legal obligation of the signatories and
is
enforceable in accordance with its terms;
(d) Article
III (Representations and Warranties Remedies and Breach) of the Servicing
Agreement is hereby amended by deleting Section 3.02(t) in its entirety
and
replacing it with the following:
(t) Payment
Terms.
Except
with respect to the Interest Only Mortgage Loan, principal payments commenced
no
more than sixty (60) days after the funds were disbursed to the Mortgagor
in
connection with the Mortgage Loan. Each Mortgage Loan is payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient (except with respect to Balloon Loans and
Interest Only Mortgage Loans) to amortize the Mortgage Loan fully by the
stated
maturity date set for in the Mortgage Note over an original term to maturity
of
not more than thirty (30) years. With respect to each Balloon Loan, the
Mortgage
Loan is payable in equal monthly installments of principal and interest
based on
a fifteen (15), thirty (30) or forty (40) year amortization schedule, as
set
forth in the related Mortgage Note, and a final lump sum payment substantially
greater than the preceding Monthly Payment is required which is sufficient
to
amortize the remaining principal balance of the Balloon Loan. As to each
Adjustable Rate Mortgage Loan on each applicable Adjustment Date, the Mortgage
Interest Rate will be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of 0.125% indicated
by
the Mortgage Note; provided that the Mortgage Interest Rate will not increase
or
decrease by more than the Periodic Interest Rate Cap on any Adjustment
Date, and
will in no event exceed the maximum Mortgage Interest Rate or be lower
than the
minimum Mortgage Interest Rate listed on the Mortgage Note. As to each
Adjustable Rate Mortgage Loan that is not an Interest Only Mortgage Loan,
each
Mortgage Note requires a monthly payment which is sufficient, during the
period
prior to the first adjustment to the Mortgage Interest Rate, to fully amortize
the outstanding principal balance as of the first day of such period over
the
then remaining term of such Mortgage Note and to pay interest at the
related Mortgage Interest Rate. As to each Adjustable Rate Mortgage Loan,
if the
related Mortgage Interest Rate changes on an Adjustment Date, with respect
to an
Interest Only Mortgage Loan, on an Adjustment Date following the related
interest only period, the then outstanding principal balance will be reamortized
over the remaining life of such Mortgage Loan. No Mortgage Loan contains
terms
or provisions which would result in negative amortization;
(e) Article
III (Representations
and Warranties Remedies and Breach) of the Servicing Agreement is hereby
amended
by deleting Section 3.02(ii) in its entirety and replacing it with the
following:
(ii) Bankruptcy.
Except
as
permitted by the Underwriting Guidelines, no Mortgagor was a debtor in
any state
or federal bankruptcy or insolvency proceeding as of the date the Mortgage
Loan
was closed and the proceeds of the Mortgage Loan were distributed.
(f) Article
IV (Administration and Servicing of Mortgage Loans) of the Servicing Agreement
is hereby amended by deleting the first paragraph of Section 4.10 (Maintenance
of Hazard Insurance) in its entirety and replacing it with the
following:
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to
the
lesser of (i) 100% of the insurable value, on a replacement cost basis,
of the
improvements on the related Mortgaged Property, or (ii) the greater of
(a) the
outstanding principal balance of the Mortgage Loan or (b) an amount such
that
the proceeds of such insurance shall be sufficient to avoid the application
to
the Mortgagor or loss payee of any coinsurance clause under the policy.
In the
event a hazard insurance policy shall be in danger of being terminated
the
Company shall notify the related Mortgagor that the Mortgagor must obtain
hazard
insurance coverage, and if said Mortgagor fails to obtain the required
hazard
insurance coverage within forty-five (45) days after such notification,
the
Company shall immediately force place the required hazard insurance, without
any
lapse of coverage, on the Mortgagor’s behalf, or in the event the insurer shall
cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company shall
notify
the Purchaser and the related Mortgagor, and shall use its best efforts,
as
permitted by applicable law, to obtain from another qualified insurer a
replacement hazard insurance policy substantially and materially similar
in all
respects to the original policy. In no event, however, shall a Mortgage
Loan be
without a hazard insurance policy at any time, subject only to Section
4.11
hereof.
(g) Article
IV (Administration and Servicing of Mortgage Loans) of the Servicing Agreement
is hereby amended by deleting the fourth paragraph of Section 4.10 (Maintenance
of Hazard Insurance) in its entirety and replacing it with the
following:
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks
not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged
Property.
(h) Article
IV (Administration and Servicing of Mortgage Loans) of the Servicing Agreement
is hereby amended by deleting Section 4.13 (Inspections) in its entirety
and
replacing it with the following:
If
any
Mortgage Loan is more than sixty (60) days delinquent and the Company has
not
entered into any temporary alternative repayment arrangements (if permitted
by any related Securitization Transaction)
with the
related Mortgagor, the Company or its agent shall inspect the Mortgaged
Property
in accordance with Accepted Servicing Practices or as may be required by
the
primary mortgage guaranty insurer to assure that the value of the Mortgaged
Property is being preserved. The Company shall keep a record of each such
inspection and, upon written request, shall provide the Purchaser with
an
electronic report of each such inspection.
(i)
Article
IX (Agency Sales, Securitization Transactions and Whole Loan Transfers)
of the
Servicing Agreement is hereby amended by inserting a new subclause
(h) in
Section 9.01 (Removal of Mortgage Loans from Inclusion Under this Agreement
Upon
an Agency Sale, Whole Loan Transfer or Securitization Transaction)
as
follows:
(h) In
connection with an Agency Transfer, the Purchaser shall provide the Company
with
a list of the Mortgage Loans, including the scheduled principal balance
of each
Mortgage Loan, to be included in such Agency Transfer. Upon receipt of
such
Mortgage Loan list, the Company shall provide the Purchaser with the
seller/servicer number to be used by the Company to deliver such Mortgage Loans
to the related Agency. The Purchaser shall provide such seller/servicer
number
to the related Agency. The Purchaser shall be responsible for providing
accurate
information, as specified above, to the Company and the related Agency.
If the
Purchaser fails to provide accurate information, the Purchaser shall be
responsible for fees and penalties pursuant to the terms of the related
transfer
documents.
Capitalized
terms used herein and not otherwise defined shall have the meanings set
forth in
the Agreements.
This
Assignment 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.
|
XXXXXX
BROTHERS BANK, FSB
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Seller |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
Schedule
I
Mortgage
Loan Schedule
Exhibit
A
Underwriting
Guidelines
Exhibit
B
Unverified
Information Mortgage Loans
ASSIGNMENT
AND CONVEYANCE AGREEMENT
On
this 30th
day of July, 2007, for
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx
Fargo Bank, N.A.
(the “Seller”)
as the Seller under that certain Master Mortgage Loan Purchase Agreement
(“Purchase Agreement”) dated as of May 1, 2006 and as the Company under that
certain Master Seller’s Warranties and Servicing Agreement, dated as of May 1,
2006, as amended by Amendment No. 1 to the Master Seller’s Warranties and
Servicing Agreement, dated August 1, 2006 and as amended by Amendment No.
2 to
the Master Seller’s Warranties and Servicing Agreement, dated July 1, 2007
(collectively, the “Servicing Agreement” and together with the Purchase
Agreement, the “Agreements”)
does hereby sell, transfer, assign, set over and convey to Xxxxxx Brothers
Bank,
FSB as the Purchaser (the “Purchaser”)
under the Agreements, and Purchaser hereby accepts from Seller, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to each of the Mortgage Loans listed on the Mortgage
Loan
Schedule attached hereto as Schedule
I (the “Mortgage Loans”),
together with the Custodial Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 2.03 of
the
Servicing Agreement, the Seller has delivered to the Custodian the documents
required
to be delivered under the Agreements
for each Mortgage Loan to be purchased. The Servicing Files and the Retained
Mortgage Files retained by the Seller pursuant to Section 2.01 of the Servicing
Agreement shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loans to the Purchaser.
The
Seller hereby makes the representations and warranties set forth in Section
3.01
and for each of the Mortgage Loans, Section 3.02 of the Servicing Agreement
as
of the date hereof.
Attached
hereto as Exhibit
A
is a copy of the Underwriting Guidelines relating to the Mortgage Loans listed
on the Mortgage Loan Schedule attached hereto as Schedule
I.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreements.
This
Assignment 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.
|
XXXXXX
BROTHERS BANK, FSB
|
XXXXX FARGO BANK, N.A. |
| Purchaser | Seller |
| By: ____________________________ | By: ____________________________ |
| Name: __________________________ | Name: __________________________ |
| Title: ___________________________ | Title: ___________________________ |
Schedule
I
Mortgage
Loan Schedule
Exhibit
A
Underwriting
Guidelines
Exhibit
B
Unverified
Information Mortgage Loans
Exhibit
D-1
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
|
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
|
X-0-0
Xxxxxxx
X-0
XXXXXXXX
XXXXXX 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.
|
D-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.
|
D-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.
|
D-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).
|
D-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.
|
D-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.
|
D-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.
|
D-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.
|
X-0-0
XXXXXXX
X-0
FORM
OF
LOAN LOSS REPORT
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Servicer
Cut Off Date
|
Reporting
cycle cut off date
|
DATE(MM/DD/YYYY)
|
|
Servicer
Loan Number
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
VARCHAR2(15)
|
|
Investor
Loan Number
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
NUMBER(9)
|
|
Servicer
Customer Number
|
Unique
number assigned to each servicer
|
NUMBER(3)
|
|
Investor
ID
|
Unique
number assigned to a group of loans in the servicing system.
|
NUMBER
(10,2)
|
|
Resolution
Type
|
Description
of the process to resolve the delinquency. Ex. Foreclosure, Short
Sale,
Third Party Sale, Deed In Lieu, etc.
|
VARCHAR2(15)
|
|
Resolution
Date
|
Date
the process described in Resolution Type was completed.
|
DATE(MM/DD/YYYY)
|
|
Liquidation
Date
|
Date
the loan was liquidated on the servicers servicing system.
|
DATE(MM/DD/YYYY)
|
|
REO
Sale Date
|
Actual
date that the sale of the REO property closed escrow.
|
DATE(MM/DD/YYYY)
|
|
Title
Date
|
Date
clear title was recorded.
|
DATE(MM/DD/YYYY)
|
|
MI
Percent
|
Percent
of coverage provided by the PMI company in the event of loss on a
defaulted loan.
|
NUMBER(6,5)
|
|
First
Legal Date
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
D-3-1
|
Foreclosure
Fees
|
Amount
paid to the Foreclosure Attorney for performing his
service.
|
NUMBER(10,2)
|
|
Foreclosure
Costs
|
Amount
incurred as part of the foreclosure process.
|
NUMBER(10,2)
|
|
Bankruptcy
Costs
|
Amount
incurred related to a bankruptcy filing involving the borrower or
subject
property.
|
NUMBER(10,2)
|
|
Eviction
Costs
|
Amount
incurred related to the eviction process.
|
NUMBER(10,2)
|
|
Appraisal
Costs
|
Amount
incurred to acquire a value for the subject property.
|
NUMBER(10,2)
|
|
Preservation
Costs
|
Amount
incurred to preserve and secure the property.
|
NUMBER(10,2)
|
|
Utility
Costs
|
Amount
incurred for utilities at the property.
|
NUMBER(10,2)
|
|
HOA
Costs
|
Amount
paid to the Home Owners Association to maintain the property
dues.
|
NUMBER(10,2)
|
|
Other
Costs
|
Amount
of Miscellaneous Expenses incurred during the default
process.
|
NUMBER(10,2)
|
|
Interest
on Advances
|
Interest
paid by HUD/VA or MI on the amounts advanced related to the liquidation
of
the property.
|
NUMBER(10,2)
|
|
Hazard
Refunds
|
Amount
of refunds of Hazard Premiums paid.
|
NUMBER(10,2)
|
|
Real
Estate Taxes
|
Amount
of any taxes paid during the default process.
|
NUMBER(10,2)
|
|
Hazard
Premiums
|
Amount
paid for Hazard Insurance on the property held as collateral for
the
mortgage.
|
NUMBER(10,2)
|
|
MI
Premiums
|
Amount
paid for Mortgage Insurance related to the mortgage loan.
|
NUMBER(10,2)
|
|
Other
Escrow
|
Miscellaneous
Expenses incurred from the escrow account during the default
process.
|
NUMBER(10,2)
|
|
Sales
Proceeds
|
Funds
received in connection with the sale of the property held as collateral
for the mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Initial
Claim Proceeds
|
Funds
received in connection with the conveyance of the property to the
insuring
agency (Positive Number).
|
NUMBER(10,2)
|
|
Final
Claim Proceeds
|
Claim
funds received from the insuring agency (HUD/VA).
|
NUMBER(10,2)
|
D-3-2
|
Other
Proceeds
|
Miscellaneous
funds received in connection with the property held as collateral
for the
mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Escrow
Balance
|
Any
positive balance remaining in the escrow account.
|
NUMBER(10,2)
|
|
Replacement
Reserve Bal
|
Amount
of funds held in the Replacement Reserve account (Positive
Number).
|
NUMBER(10,2)
|
|
Restricted
Escrow Bal
|
Amount
of funds held in the Restricted Escrow account.
|
NUMBER(10,2)
|
|
Suspense
Balance
|
Amount
of funds held in the Suspense account (Positive Number).
|
NUMBER(10,2)
|
|
Servicer
Retained Loss
|
The
total amount of the Gross Final Actual (Loss)/Gain the servicer will
take,
due to Interest/Expense Curtailments by HUD/VA (This would include
Advances not claimed to HUD/VA or MI due to servicer error) (Positive
Number).
|
NUMBER(10,2)
|
X-0-0
XXXXXXX
X-0
FORM
OF
MODIFIED LOAN REPORT
|
Fidelity
Client
|
|
|
Loan
Number
|
|
|
Investor
ID
|
|
|
MOD
Xxxx Date
|
|
|
Date
MOD Completed
|
|
|
MOD
Type
|
|
|
Deal
Name
|
|
|
UPB
Prior to Modification
|
|
|
Next
due Date Prior to Modification
|
|
|
Dlq
Status Prior to Modification
|
|
|
Interest
Rate Prior to Modification
|
|
|
Scheduled
P&I Payment Prior to Modification
|
|
|
Scheduled
Total Payment Prior Modification
|
|
|
Corporate
Advance Capitalized
|
|
|
Escrow
Advance Capitalized
|
|
|
Gross
Interest Capitalized
|
|
|
SF
Rate
|
|
|
Months
Dlq
|
|
|
Service
Fee Capitalized
|
|
|
Net
Interest Capitalized
|
|
|
Other
Fees Capitalized
|
|
|
Mortgagor
Contribution
|
|
|
Total
Capitalized
|
|
|
UPB
Post Modification
|
|
|
Next
Payment Due Date per Modification Plan
|
|
|
Dlq
Status Post Modification
|
|
|
Interest
Rate Post Modification
|
|
|
New
Maturity Date Term
|
|
|
Scheduled
P&I Payment Post Modification
|
|
|
Scheduled
Total Payment Post Modification
|
D-4-1
EXHIBIT
E
TRANSACTION
PARTIES
|
Trustee:
|
U.S.
Bank National Association
|
|
Securities
Administrator:
|
Xxxxx
Fargo Bank, N.A.
|
|
Master
Servicer:
|
Aurora
Loan Services LLC
|
|
Credit
Risk Manager:
|
Xxxxxxx
Fixed Income Services Inc.
|
|
Interest
Rate Swap Counterparty:
|
Credit
Suisse International
|
|
Interest
Rate Cap Counterparty:
|
Credit
Suisse International
|
|
Servicer(s):
|
Xxxxx
Fargo Bank, N.A.
|
|
Originator(s):
|
Xxxxx
Fargo Bank, N.A.
|
|
Custodian(s):
|
Xxxxx
Fargo Bank, N.A.
|
|
Seller:
|
Xxxxxx
Brothers Holdings Inc.
|
EXHIBIT
F
SERVICING
CRITERIA TO BE ADDRESSED
IN
REPORT
ON ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”, as identified by a xxxx in the column titled “Applicable Servicing
Criteria”:
|
Regulation
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
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.
|
|
|
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
|
F-1
|
Regulation
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
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 (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
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
|
F-2
|
Regulation
AB Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
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
|
|
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
|
|
Pool
Asset Administration cont.
|
||
|
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.
|
F-3
SCHEDULE
I
Schedule
of Mortgage Loans
Serviced
by Xxxxx Fargo Bank, N.A.
[To
be
retained in a separate closing binder entitled “SASCO 2007-WF2 Mortgage
Loan
Schedules”
at the Washington, DC offices of XxXxx Xxxxxx LLP]
Schedule
I
