SECOND AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT between AMERICAN HOME MORTGAGE CORP., as Seller, AMERICAN HOME MORTGAGE SERVICING, INC., as Servicer, and GOLDMAN SACHS MORTGAGE COMPANY, as Purchaser Dated as of May 1, 2006...
SECOND
AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT
between
AMERICAN
HOME MORTGAGE CORP.,
as
Seller,
AMERICAN
HOME MORTGAGE SERVICING, INC.,
as
Servicer,
and
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Purchaser
Dated
as
of May 1, 2006
Conventional,
Fixed
and
Adjustable Rate,
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
DEFINITIONS
|
1
|
|
SECTION
2.
|
PURCHASE
AND CONVEYANCE
|
17
|
|
SECTION
3.
|
MORTGAGE
LOAN SCHEDULE
|
18
|
|
SECTION
4.
|
PURCHASE
PRICE
|
18
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES
|
19
|
|
SECTION
6.
|
DELIVERY
OF MORTGAGE LOAN DOCUMENTS.
|
19
|
|
Subsection
6.01
|
Possession
of Mortgage Files
|
19
|
|
Subsection
6.02
|
Books
and Records
|
20
|
|
Subsection
6.03
|
Delivery
of Mortgage Loan Documents
|
20
|
|
Subsection
6.04
|
MERS
Designated Loans
|
21
|
|
SECTION
7.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS; REMEDIES FOR BREACH.
|
21
|
|
Subsection
7.01
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
21
|
|
Subsection
7.02
|
Seller
and Servicer Representations
|
36
|
|
Subsection
7.03
|
Remedies
for Breach of Representations and Warranties.
|
40
|
|
SECTION
8.
|
CLOSING
|
43
|
|
SECTION
9.
|
CLOSING
DOCUMENTS
|
43
|
|
SECTION
10.
|
COSTS
|
45
|
|
SECTION
11.
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS.
|
45
|
|
Subsection
11.01
|
Servicer
to Act as Servicer
|
45
|
|
Subsection
11.02
|
Liquidation
of Mortgage Loans
|
47
|
|
Subsection
11.03
|
Collection
of Mortgage Loan Payments
|
47
|
-i-
|
Subsection
11.04
|
Establishment
of Custodial Account; Deposits in Custodial Account.
|
47
|
|
Subsection
11.05
|
Withdrawals
From the Custodial Account
|
49
|
|
Subsection
11.06
|
Establishment
of Escrow Account; Deposits in Escrow Account.
|
50
|
|
Subsection
11.07
|
Withdrawals
From Escrow Account
|
50
|
|
Subsection
11.08
|
Payment
of Taxes, Insurance and Other Charges; Collections
Thereunder
|
51
|
|
Subsection
11.09
|
Transfer
of Accounts
|
52
|
|
Subsection
11.10
|
Maintenance
of Hazard Insurance
|
52
|
|
Subsection
11.11
|
Fidelity
Bond; Errors and Omissions Insurance
|
53
|
|
Subsection
11.12
|
Title,
Management and Disposition of REO Property
|
53
|
|
Subsection
11.13
|
Servicing
Compensation
|
54
|
|
Subsection
11.14
|
Distributions
|
55
|
|
Subsection
11.15
|
Statements
to the Purchaser
|
55
|
|
Subsection
11.16
|
Advances
by the Servicer
|
56
|
|
Subsection
11.17
|
Assumption
Agreements
|
57
|
|
Subsection
11.18
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
57
|
|
Subsection
11.19
|
Annual
Statement as to Compliance
|
58
|
|
Subsection
11.20
|
Annual
Independent Public Accountants’ Servicing Report or
Attestation.
|
58
|
|
Subsection
11.21
|
Servicer
Shall Provide Access and Information as Reasonably
Required.
|
58
|
|
Subsection
11.22
|
Transfer
of Servicing
|
59
|
|
Subsection
11.23
|
Notification
of Maturity Date
|
61
|
|
Subsection
11.24
|
Notification
of Adjustments
|
61
|
|
SECTION
12.
|
THE
SERVICER.
|
62
|
|
Subsection
12.01
|
Indemnification;
Third Party Claims
|
62
|
|
Subsection
12.02
|
Merger
or Consolidation of the Seller and the Servicer
|
63
|
|
Subsection
12.03
|
Limitation
on Liability of the Servicer and Others
|
64
|
|
Subsection
12.04
|
Seller
and Servicer Not to Resign
|
64
|
|
SECTION
13.
|
DEFAULT.
|
64
|
|
Subsection
13.01
|
Events
of Default
|
64
|
|
Subsection
13.02
|
Waiver
of Defaults
|
66
|
|
SECTION
14.
|
TERMINATION
|
66
|
|
Subsection
14.01
|
Termination
|
66
|
|
Subsection
14.02
|
Termination
of the Servicer Without Cause
|
66
|
|
Subsection
14.03
|
Successors
to the Servicer
|
67
|
|
SECTION
15.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION
|
67
|
|
SECTION
16.
|
NOTICES
|
69
|
-ii-
|
SECTION
17.
|
SEVERABILITY
CLAUSE
|
71
|
|
SECTION
18.
|
NO
PARTNERSHIP
|
71
|
|
SECTION
19.
|
COUNTERPARTS
|
71
|
|
SECTION
20.
|
GOVERNING
LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS
|
72
|
|
SECTION
21.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST
|
72
|
|
SECTION
22.
|
INTENTION
OF THE PARTIES
|
73
|
|
SECTION
23.
|
SUCCESSORS
AND ASSIGNS
|
73
|
|
SECTION
24.
|
WAIVERS
|
73
|
|
SECTION
25.
|
EXHIBITS
|
73
|
|
SECTION
26.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
73
|
|
SECTION
27.
|
REPRODUCTION
OF DOCUMENTS
|
74
|
|
SECTION
28.
|
AMENDMENT
|
74
|
|
SECTION
29.
|
CONFIDENTIALITY
|
74
|
|
SECTION
30.
|
ENTIRE
AGREEMENT
|
75
|
|
SECTION
31.
|
FURTHER
AGREEMENTS
|
75
|
|
SECTION
32.
|
NO
SOLICITATION
|
75
|
|
SECTION
33.
|
WAIVER
OF JURY TRIAL
|
76
|
|
SECTION
34.
|
COMPLIANCE
WITH REGULATION AB
|
76
|
|
Subsection
34.01
|
(a)
Intent of the Parties; Reasonableness
|
76
|
|
Subsection
34.02
|
Additional
Representations and Warranties of the Seller and the
Servicer.
|
77
|
|
Subsection
34.03
|
Information
to Be Provided by the Seller and the Servicer
|
78
|
-iii-
|
Subsection
34.04
|
Servicer
Compliance Statement
|
82
|
|
Subsection
34.05
|
Report
on Assessment of Compliance and Attestation.
|
83
|
|
Subsection
34.06
|
Use
of Subservicers and Subcontractors
|
84
|
|
Subsection
34.07
|
Indemnification;
Remedies.
|
85
|
|
Subsection
34.08
|
Loan
Performance Information.
|
87
|
EXHIBITS
|
EXHIBIT
1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
3
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION
AGREEMENT
|
|
EXHIBIT
4
|
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
|
|
EXHIBIT
5
|
FORM
OF CUSTODIAL ACCOUNT LETTER
AGREEMENT
|
|
EXHIBIT
6
|
FORM
OF ESCROW ACCOUNT CERTIFICATION
|
|
EXHIBIT
7
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
8
|
SELLER’S
UNDERWRITING GUIDELINES
|
|
EXHIBIT
9
|
REQUIRED
FIELDS OF MONTHLY REMITTANCE REPORT
|
|
EXHIBIT
10
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
11
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
12
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
13
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
14
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
|
EXHIBIT
15
|
FORM
OF ASSIGNMENT AND RECOGNITION
AGREEMENT
|
|
EXHIBIT
16
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
17
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
-iv-
SECOND
AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS
SECOND AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT (the
“Agreement”),
dated
as of May 1, 2006 is hereby executed by and between XXXXXXX XXXXX MORTGAGE
COMPANY, a New York limited partnership (the “Purchaser”),
and
AMERICAN HOME MORTGAGE CORP., a New York corporation (the “Seller”)
and
American Home Mortgage Servicing, Inc., a Maryland corporation (the
“Servicer”).
WITNESSETH:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first and second lien
mortgage loans (the “Mortgage
Loans”)
on a
servicing-retained basis as described herein, and which shall be delivered
in
pools of whole loans (each, a “Mortgage
Loan Package”)
on
various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
each Mortgage Loan 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 Mortgage Loan Schedule for the related
Mortgage Loan Package;
WHEREAS,
the Purchaser, the Seller and the Servicer wish to prescribe the manner of
the
conveyance, servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated mortgage
pass-through transaction.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser, the Seller and
the
Servicer agree as follows:
Section
1. Definitions.
For
purposes of this Agreement, the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Procedures:
Procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its
own
account that are similar to the Mortgage Loans and which are in accordance
with
accepted mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as the Mortgage Loans in the
jurisdictions where the related Mortgaged Properties are located.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement, the Mortgage Interest Rate
of which is adjusted from time to time in accordance with the terms of the
related Mortgage Note.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A
Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement including
all exhibits, schedules, amendments and supplements hereto.
ALTA:
The
American Land Title Association.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by a Qualified Appraiser and
(ii) the purchase price paid for the related Mortgaged Property by the
Mortgagor with the proceeds of the Mortgage Loan; provided,
however,
that in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by a Qualified Appraiser.
Assignment
and Conveyance Agreement:
As
defined in Section 2.
Assignment
of Mortgage:
An
individual assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form and in blank, sufficient under the laws of the
jurisdiction in which the related Mortgaged Property is located to give record
notice of the sale of the Mortgage to the Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan (a) that requires only payments of interest until the stated
maturity date of the Mortgage Loan or (b) for which Monthly Payments of
principal (not including the payment due on its stated maturity date) are based
on an amortization schedule that would be insufficient to fully amortize the
principal thereof by the stated maturity date of the Mortgage Loan.
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banking and savings and
loan
institutions in the state in which (i) the Servicer is located or
(ii) the Custodial Account is maintained, are authorized or obligated by
law or executive order to be closed.
Cash-Out
Refinance:
A
Refinanced Mortgage Loan in which the proceeds received were in excess of the
amount of funds required to repay the principal balance of any existing first
mortgage on the related Mortgaged Property, pay related closing costs and
satisfy any outstanding subordinate mortgages on the related Mortgaged Property
and which provided incidental cash to the related Mortgagor of more than 1%
of
the original principal balance of such Mortgage Loan.
-2-
Closing
Date:
The
date or dates on which the Purchaser from time to time shall purchase, and
the
Seller from time to time shall sell, the Mortgage Loans listed on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Closing
Documents:
The
documents required to be delivered on each Closing Date pursuant to Section 9.
CLTA:
The
California Land Title Association.
CLTV:
As of
the date of origination and as to any Second Lien Mortgage Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding principal
balance of the Second Lien Mortgage Loan as of the date of origination and
(ii)
the outstanding principal balance as of the date of origination of any mortgage
loan or mortgage loans that are senior or equal in priority to the Second Lien
Mortgage Loan and which are secured by the same Mortgaged Property to (b) the
Appraised Value of the Mortgaged Property.
Code:
The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of condemnation or the right of eminent domain, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents.
Co-op:
A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of
Standard & Poor’s Glossary.
Custodial
Account:
As
defined in Subsection 11.04.
-3-
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents. If more
than
one Custodial Agreement is in effect at any given time, all of the individual
Custodial Agreements shall collectively be referred to as the “Custodial
Agreement.”
Custodian:
Deutsche Bank National Trust Company, a national banking association, and its
successors in interest, or any successor to the Custodian under the Custodial
Agreement as therein provided.
Cut-off
Date:
The
date or dates designated as such on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package.
Cut-off
Date Principal Balance:
The
aggregate Stated Principal Balance of the Mortgage Loans as of the applicable
Cut-off Date which is determined after the application, to the reduction of
principal, of payments of principal due on or before such Cut-off Date, whether
or not collected, and of partial principal prepayments received before such
Cut-off Date.
Deemed
Material Breach Representation:
Each
representation and warranty identified as such in
Subsection 7.01.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased or to be repurchased or replaced or to be
replaced with a Qualified Substitute Mortgage Loan by the Seller in accordance
with the terms of this Agreement.
Delinquent
Mortgage Loans:
As
defined in Subsection 11.01.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
With
respect to each Remittance Date, the 15th
day (or,
if such 15th
day is
not a Business Day, the following Business Day) of the month in which such
Remittance Date occurs.
Due
Date:
With
respect to each Remittance Date, the first day of the calendar month in which
such Remittance Date occurs, which is the day 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 and any Mortgage Loan, the period beginning
on
the second day of the month preceding such Remittance Date through and including
the first day of the month in which such Remittance Date occurs.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(a) obligations
of or guaranteed as to principal and interest by Xxxxxxx Mac, Xxxxxx Xxx or
any
agency or instrumentality of the United States when such obligations are backed
by the full faith and credit of the United States; provided,
however,
that
such obligations of Xxxxxxx Mac or Xxxxxx Xxx shall be limited to senior debt
obligations and mortgage participation certificates except that investments
in
mortgage-backed or mortgage participation securities with yields evidencing
extreme sensitivity to the rate of principal payments on the underlying
mortgages shall not constitute Eligible Investments hereunder;
-4-
(b) repurchase
agreements on obligations specified in clause (a) maturing not more
than one month from the date of acquisition thereof;
(c) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than ninety
(90) days and, in the case of bankers’ acceptances, shall in no event have
an original maturity of more than 365 days or a remaining maturity of more
than thirty (30) days) denominated in United States dollars of any United
States depository institution or trust company incorporated under the laws
of
the United States or any state thereof or of any domestic branch of a foreign
depository institution or trust company;
(d) commercial
paper (having original maturities of not more than 365 days) of any
corporation incorporated under the laws of the United States or any state
thereof which is rated not lower than “P-2” by Xxxxx’x Investors Service, Inc.
and rated not lower than “A-2” by Standard & Poor’s; and
(e) a
money
market fund;
provided,
however,
that no
instrument shall be an Eligible Investment if it represents, either (1) the
right to receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive both principal and interest payments
derived from obligations underlying such instrument and the principal and
interest with respect to such instrument provide a yield to maturity greater
than 120% of the yield to maturity at par of such underlying
obligations.
Escrow
Account:
As
defined in Subsection 11.06.
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 document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Subsection 13.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
Federal National Mortgage Association or any successor thereto.
Xxxxxx
Mae Guides:
The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide, as amended or
restated from time to time.
Xxxxxx
Xxx Transfer:
As
defined in Section 15.
-5-
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
Fidelity
Bond:
The
fidelity bond required to be obtained by the Servicer pursuant to Subsection 11.11.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
Fixed
Rate Mortgage Loan:
A fixed
rate mortgage loan purchased pursuant to this Agreement.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Xxxxxxx
Mac Transfer:
As
defined in Section 15.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High
Cost Loan:
A
Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of 1994, (b) classified as a “high cost home,” “threshold,” “covered,”
(excluding New Jersey “Covered Home Loans” as that term was defined in
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002 that were originated between November 26, 2003 and
July 7, 2004), “high risk home,” “predatory” or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) a Mortgage Loan categorized as
High Cost pursuant to Appendix E of Standard & Poor’s Glossary.
For avoidance of doubt, the parties agree that this definition shall apply
to
any law regardless of whether such law is presently, or in the future becomes,
the subject of judicial review or litigation.
Home
Loan:
A
Mortgage Loan categorized as a Home Loan pursuant to Appendix E of
Standard & Poor’s Glossary.
HUD:
The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes of this
Agreement, is also deemed to include subdivisions thereof such as the FHA and
Government National Mortgage Association.
-6-
Index:
The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan, the date, specified in the
related Mortgage Note and the related Mortgage Loan Schedule, on which the
Mortgage Interest Rate is adjusted.
Interim
Funder:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the interim funder pursuant to the MERS Procedures
Manual.
Investor:
With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable Rate Mortgage Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder. The
Mortgage Interest Rate during the term of each Adjustable Rate Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount per
annum set forth on the related Mortgage Loan Schedule.
Liquidation
Proceeds:
The
proceeds 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, other than amounts received following the acquisition of REO Property,
Insurance Proceeds and Condemnation Proceeds.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, as of any date of determination, the ratio
(expressed as a percentage) the numerator of which is the outstanding principal
balance of the Mortgage Loan as of the related Cut-off Date (unless otherwise
indicated), and the denominator of which is the lesser of (a) the Appraised
Value of the Mortgaged Property at origination and (b) if the Mortgage Loan
was made to finance the acquisition of the related Mortgaged Property, the
purchase price of the Mortgaged Property.
LPMI
Fee:
With
respect to each Mortgage Loan which has an LPMI Policy, the portion of the
Mortgage Interest Rate as set forth on the related Mortgage Loan Schedule (which
shall be payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used
to
pay the premium due on the related LPMI Policy.
LPMI
Loan:
Any
Mortgage Loan with respect to which Servicer is responsible for paying the
premium due on the related LPMI Policy with the proceeds generated by the LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage Loan
Schedule.
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LPMI
Policy:
A
policy of primary mortgage guaranty insurance issued by an insurer acceptable
under the Underwriting Guidelines and qualified to do business in the
jurisdiction where the Mortgaged Property is located, pursuant to which the
related premium is to be paid by the Servicer of the related Mortgage Loan
from
payments of interest made by the Mortgagor in an amount as is set forth in
the
related Mortgage Loan Schedule.
LTV:
Loan-to-Value Ratio.
Manufactured
Home:
A
single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on June 15, 1976, by the Department of Housing and Urban
Development (“HUD
Code”),
as
amended in 2000, which preempts state and local building codes. Each unit is
identified by the presence of a HUD Plate/Compliance Certificate label. The
sections are then transported to the site and joined together and affixed to
a
pre-built permanent foundation (which satisfies the manufacturer’s requirements
and all state, county, and local building codes and regulations). The
manufactured home is built on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and roof. The underneath part
of
the home may have running gear (wheels, axles, and brakes) that enable it to
be
transported to the permanent site. The wheels and hitch are removed prior to
anchoring the unit to the permanent foundation. The manufactured home must
be
classified as real estate and taxed accordingly. The permanent foundation may
be
on land owned by the mortgager or may be on leased land.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated Mortgage Loan:
Mortgage Loans for which (a) the Seller has designated or will designate
MERS as, and has taken or will take such action as is necessary to cause MERS
to
be, the mortgagee of record, as nominee for the Seller, in accordance with
the
MERS Procedures Manual and (b) the Seller has designated or will designate
the Purchaser as the Investor on the MERS System.
MERS
Procedures Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS
Report:
The
report from the MERS System listing MERS Designated Mortgage Loans and other
information.
MERS
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled payment of principal and interest
payable by a Mortgagor under the related Mortgage Note on each Due
Date.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first or second
lien, as applicable, on the Mortgaged Property. With respect to a Co-op Loan,
the Security Agreement.
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Mortgage
File:
With
respect to any Mortgage Loan, the Mortgage Loan Documents and the items listed
in Exhibit 2
hereto
and any additional documents required to be added to the Mortgage File pursuant
to this Agreement.
Mortgage
Interest Rate:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage
Loan:
Each
mortgage loan sold, assigned and transferred pursuant to this Agreement and
identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes, without limitation, the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
With
respect to any Mortgage Loan, the documents listed in Exhibit 1
hereto.
Mortgage
Loan Package:
Each
pool of Mortgage Loans, which shall be purchased by the Purchaser from the
Seller from time to time on each Closing Date.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest payable to the
Purchaser, which shall be equal to the related Mortgage Interest Rate minus
the
related Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans setting forth the following information with respect
to each Mortgage Loan in the related Mortgage Loan Package: (1) the
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s name;
(3) the social security number of the Mortgagor; (4) a code indicating
whether the Mortgagor’s race and/or ethnicity is (i) native American or
Alaskan native, (ii) Asian/Pacific islander, (iii) African American,
(iv) white, (v) Hispanic or Latino, (vi) other minority,
(vii) not provided by the Mortgagor, (viii) not applicable (if the
Mortgagor is an entity) and (ix) unknown or missing; (5) the street
address of the Mortgaged Property including the city, state and zip code;
(6) a code indicating whether the Mortgagor is self-employed; (7) a
code indicating whether the Mortgaged Property is owner-occupied, investment
property or a second home; (8) a code indicating the number and type of
residential units constituting the Mortgaged Property (e.g. single family
residence, two-family residence, three-family residence, four-family residence,
multifamily residence, condominium, manufactured housing, mixed-use property,
raw land and other non-residential properties, planned unit development or
cooperative stock in a cooperative housing corporation); (9) the original
months to maturity or the remaining months to maturity from the related Cut-off
Date, in any case based on the original amortization schedule and, if different,
the maturity expressed in the same manner but based on the actual amortization
schedule; (10) the Loan-to-Value Ratio at origination; (11) the
Mortgage Interest Rate as of the related Cut-off Date; (12) the date on
which the first Monthly Payment was due on the Mortgage Loan and, if such date
is not consistent with the Due Date currently in effect, the Due Date;
(13) the stated maturity date; (14) the amount of the Monthly Payment
as of the related Cut-off Date; (15) the last payment date on which a
payment was actually applied to the outstanding principal
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balance;
(16) the schedule of the payment delinquencies in the prior 12 months;
(17) the original principal amount of the Mortgage Loan; (18) the
principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (19) whether the Mortgage Loan has
Monthly Payments that are interest-only for a period of time, and the
interest-only period, if applicable; (20) with respect to (a) each Mortgage
Loan with a second lien behind it, the combined principal balance of the
Mortgage Loan and the applicable second lien loan, as of the close of business
on the related Cut-off Date, after deduction of payments of principal due and
collected on or before the related Cut-off Date or (b) each Second Lien Loan,
the CLTV; (21) a code indicating whether there is a simultaneous second;
(22) with respect to Adjustable Rate Mortgage Loans, the Interest Rate
Adjustment Date; (23) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (24) with respect to Adjustable Rate Mortgage Loans, the
Lifetime Rate Cap under the terms of the Mortgage Note; (25) with respect
to Adjustable Rate Mortgage Loans, a code indicating the type of Index,
including the methodology for rounding (e.g. rounded upward, if necessary,
to
the nearest ten thousandth (.0001)) and the applicable time frame for
determining the Index; (26) the product type of Mortgage Loan (i.e., fixed
rate, first lien, second lien or adjustable rate Mortgage Loan); (27) a
code indicating the purpose of the loan (i.e., purchase, Rate/Term Refinance
or
Cash-Out Refinance); (28) a code indicating the documentation style (i.e.
no documents, full, alternative, reduced, no income/no asset, stated income,
no
ration, reduced or NIV); (29) asset verification (Y/N); (30) the loan
credit classification (as described in the Underwriting Guidelines);
(31) whether such Mortgage Loan provides for a Prepayment Penalty;
(32) the Prepayment Penalty period of such Mortgage Loan, if applicable;
(33) a description of the Prepayment Penalty, if applicable; (34) the
Mortgage Interest Rate as of origination; (35) the credit risk score (FICO
score); (36) the date of origination; (37) with respect to Adjustable
Rate Mortgage Loans, the Mortgage Interest Rate adjustment period;
(38) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment percentage; (39) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate floor; (40) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (41) with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap as of the
first
Interest Rate Adjustment Date; (42) with respect to each Adjustable Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides for negative
amortization; (43) a code indicating whether the Mortgage Loan has negative
amortization and the maximum of such negative amortization; (44) a code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (45) a
code indicating whether the Mortgage Loan by
its
original terms or any modifications thereof provides for amortization beyond
its
scheduled maturity date;
(46) the original Monthly Payment due; (47) the Appraised Value;
(48) appraisal type; (49) appraisal date (50) a code indicating
whether the Mortgage Loan is covered by a PMI Policy and, if so, identifying
the
PMI Policy provider; (51) the certificate number of the PMI Policy, if
applicable; (52) the amount of coverage of the PMI Policy, if applicable;
(53) in connection with a condominium unit, a code indicating whether the
condominium project where such unit is located is low-rise or high-rise;
(54) a code indicating whether the Mortgaged Property is a leasehold
estate; (55) with respect to the related Mortgagor, the debt-to-income
ratio; (56) sales price; (57) automated valuation model (AVM);
(58) a code indicating whether the Mortgage Loan is a MERS Designated
Mortgage Loan and the MERS Identification Number, if applicable; (59) a
field indicating whether such Mortgage Loan is a Home Loan; (60) the DU or
LP number, if applicable; (60) with respect to each Option ARM Mortgage Loan,
(a) a detailed transaction history indicating how all payments were applied,
(b)
the total negative amortization amount as of the Closing Date and (c) all
adjustable rate change histories; and (61) a code indicating if the Mortgage
Loan is a High Cost Loan or Home Loan as such terms are defined in the then
current Standard & Poor’s Glossary. With respect to the Mortgage Loans in
the aggregate, the related Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; (4) the weighted average maturity of the Mortgage Loans;
(5) the average principal balance of the Mortgage Loans; (6) the
applicable Cut-off Date; and (7) the applicable Closing Date.
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Mortgage
Note:
The
original executed note or other evidence of the Mortgage Loan indebtedness
of a
Mortgagor,
including any riders or addenda thereto.
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Co-op Loan, the Mortgagor’s real
property securing repayment of a related Mortgage Note, consisting of an
unsubordinated estate in fee simple or, with respect to real property located
in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate, in a single parcel or
multiple parcels of real property improved by a Residential Dwelling. With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note, who is an owner of the Mortgaged Property and the
grantor or mortgagor named in the Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
NAIC:
The
National Association of Insurance Commissioners or any successor
thereto.
OCC:
Office
of the Comptroller of the Currency, or any successor thereto.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
a President or a Vice President and by the Treasurer, the Secretary, or one
of
the Assistant Treasurers or the Assistant Secretaries of the Person on behalf
of
whom such certificate is being delivered.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Seller or the
Servicer, reasonably acceptable to the Purchaser.
Option
ARM Mortgage Loan:
An
adjustable rate Mortgage Loan that gives the related Mortgagor three different
payment options each month, which include: (i) a minimum monthly payment option,
(ii) an interest-only payment option or (iii) a full principal and interest
option which amortizes over 30 years or less.
-11-
OTS:
The
Office of Thrift Supervision or any successor thereto.
Owner:
As
defined in Subsection 11.12.
P&I
Advance:
As
defined in Subsection 11.16.
Payment
Adjustment Date:
As to
each Adjustable Rate Mortgage Loan, the date on which an adjustment to the
Monthly Payment on a Mortgage Note becomes effective.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may increase or decrease on an Interest Rate Adjustment
Date above or below the Mortgage Interest Rate previously in effect. The
Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate set forth
as such on the related Mortgage Loan Schedule.
Periodic
Rate Floor:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may decrease on an Interest Rate Adjustment Date below
the
Mortgage Interest Rate previously in effect.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by an insurer acceptable
under the Underwriting Guidelines and qualified to do business in the
jurisdiction where the Mortgaged Property is located.
Preliminary
Mortgage Schedule:
As
defined in Section 3.
Prepayment
Penalty:
With
respect to each Mortgage Loan, the amount of any premium or penalty required
to
be paid by the Mortgagor if the Mortgagor prepays such Mortgage Loan as provided
in the related Mortgage Note or Mortgage.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal (Northeast edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Penalty thereon,
and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans purchased on such Closing Date as calculated
in
Section 4
of this
Agreement.
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Purchase
Price and Terms Agreement:
Each of
those certain agreements setting forth the general terms and conditions of
the
purchase and sale of the Mortgage Loans to be purchased from time to time
hereunder, each by and between the Seller and the Purchaser.
Purchase
Price Percentage:
The
percentage of par (expressed as decimal) set forth in the related Purchase
Price
and Terms Agreement.
Purchaser:
Xxxxxxx
Xxxxx Mortgage Company, a New York limited partnership, and its successors
in
interest and assigns, or any successor to the Purchaser under this Agreement
as
herein provided.
Qualified
Appraiser:
An
appraiser, duly appointed by the originator, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of FIRREA and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“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 Seller 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 Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller’s own account or (y)
the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by lenders
in originating mortgage loans to be purchased by the Seller; and (iv) the Seller
employed, at the time such Mortgage Loans were acquired by the Seller,
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 Seller.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Seller for a Deleted Mortgage
Loan which must, on the date of such substitution, be approved by the Purchaser
and (i) have an unpaid 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 unpaid principal balance of the Deleted Mortgage
Loan (the amount of any shortfall will be deposited in the Custodial Account
by
the Seller in the month of substitution); (ii) have a Mortgage Interest
Rate not less than and not more than one percent (1%) greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one (1) year less than that of
the Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage
Loan (i.e., fixed rate or adjustable rate with same Mortgage Interest Rate
Cap
and Index); (v) comply as of the date of substitution with each
representation and warranty set forth in Subsection 7.01
of this
Agreement; (vi) be
current in the payment of principal and interest; (vii) be secured by a
Mortgaged Property of the same type and occupancy status as secured the Deleted
Mortgage Loan; and (viii) have payment terms that do not vary in any
material respect from those of the Deleted Mortgage Loan.
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Rate/Term
Refinance:
A
Refinanced Mortgage Loan, in which the proceeds received were not in excess
of
the amount of funds required to repay the principal balance of any existing
first mortgage loan on the related Mortgaged Property, pay related closing
costs
and satisfy any outstanding subordinate mortgages on the related Mortgaged
Property and did not provide incidental cash to the related Mortgagor of more
than one percent (1%) of the original principal balance of such Mortgage
Loan.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
As
defined in Section 15.
Record
Date:
The
close of business of the last Business Day of the month preceding the month
of
the related Remittance Date.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
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.
Remittance
Date:
No
later than 1:00 p.m. New York time on the 18th day of any month (or, if
such 18th day is not a Business Day, the following Business Day).
REO
Disposition:
The
final sale by the Servicer of an REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Subsection 11.12.
REO
Property:
A
Mortgaged Property acquired by the Servicer through foreclosure or deed in
lieu
of foreclosure, as described in Subsection 11.12.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to the sum of: (i) the
unpaid principal balance of such Mortgage Loan, (ii) accrued
interest on such unpaid principal balance at the applicable Mortgage Interest
Rate from the applicable Cut-off Date through the last day of the month in
which
such repurchase takes place, (iii) the amount of any outstanding advances
owed to any servicer if the Seller is not the Servicer, and (iv) all costs
and expenses incurred by the Purchaser or any servicer arising out of or based
upon such breach, including without limitation costs and expenses incurred
in
the enforcement of the Seller’s repurchase obligation hereunder.
-14-
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached
two- to four-family dwelling, (iii) a one-family dwelling unit in a
condominium project, or (iv) a one-family dwelling in a planned unit
development, none of which is a co-operative, mobile or Manufactured
Home.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
Securities
Act:
The
federal Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Security
Agreement:
The
agreement creating a security interest in the stock allocated to a dwelling
unit
in the residential cooperative housing corporation that was pledged to secure
such Co-op Loan and the related Co-op Lease.
Seller:
As
defined in the initial paragraph of this Agreement, together with its successors
in interest.
Servicer:
As
defined in the initial paragraph of this Agreement, together with its successors
and assigns as permitted under the terms of this Agreement.
Servicer
Information:
As
defined in Subsection
34.07(a).
Servicing
Advances:
All
customary, reasonable and necessary out-of-pocket costs and expenses incurred
in
the performance by the Servicer of its servicing obligations, including, but
not
limited to, the cost of (i) the preservation, restoration and protection of
the Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of the
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of
the
Mortgage, and (iv) payments made by the Servicer with respect to a
Mortgaged Property pursuant to Subsection 11.08.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Servicer, which shall, for each month, be equal to one-twelfth of
(i) the product of the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed, and if the Servicer
is terminated or resigns hereunder shall be pro rated (based upon the number
of
days of the related month the Servicer so acted as Servicer relative to the
number of days in that month) for each part thereof. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds and other proceeds, to the extent permitted by Subsection 11.05)
of
related Monthly Payments collected by the Servicer, or as otherwise provided
under Subsection 11.05.
-15-
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the per annum rate set forth in the applicable
Purchase Price and Terms Agreement.
Servicing
File:
With
respect to each Mortgage Loan, the portion of the Mortgage File, excluding
the
Mortgage Loan Documents, retained by the Servicer pursuant to the terms of
this
Agreement.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished to the Purchaser by the Servicer, as such list may be amended
from time to time.
Servicing
Rights:
Any and
all of the following: (a) any and all rights to service the Mortgage Loans;
(b) any payments to or monies received by the Seller for servicing the
Mortgage Loans; (c) any late fees, penalties or similar payments with
respect to the Mortgage Loans; (d) all agreements or documents creating,
defining or evidencing any such servicing rights to the extent they relate
to
such servicing rights and all rights of the Seller thereunder; (e) Escrow
Payments or other similar payments with respect to the Mortgage Loans and any
amounts actually collected by the Seller with respect thereto; (f) all
accounts and other rights to payment related to any of the property described
in
this paragraph; and (g) any and all documents, files, records, servicing
files, servicing documents, servicing records, data tapes, computer records,
or
other information pertaining to the Mortgage Loans or pertaining to the past,
present or prospective servicing of the Mortgage Loans.
Standard &
Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies Inc., and any successor thereto.
Standard &
Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Stated
Principal Balance:
As
to
each Mortgage Loan as to any date of determination, (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect
to
payments of principal due on or before such date, whether or not received,
minus
(ii) all amounts previously distributed to the Purchaser with respect to
the related Mortgage Loan representing payments or recoveries of principal,
or
advances in lieu thereof on such Mortgage Loan.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
-16-
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 Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller 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 Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Successor
Servicer:
Any
servicer of one or more Mortgage Loans designated by the Purchaser as being
entitled to the benefits of the indemnifications set forth in Subsections 7.03
and
12.01.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Transaction
Servicer:
As
defined in Subsection
34.03(c).
Transfer
Date:
In the
event the Servicer is terminated as servicer of a Mortgage Loan pursuant to
Subsections 12.04,
13.01, 14.01(c)
or
14.02,
the
date on which the Purchaser, or its designee, shall receive the transfer of
servicing responsibilities and begin to perform the servicing of such Mortgage
Loans, and the Seller, as Servicer, shall cease all servicing responsibilities.
Underwriting
Guidelines:
The
underwriting guidelines of the Seller, a copy of which is attached hereto as
Exhibit 8
and a
then-current copy of which shall be attached as an exhibit to the related
Assignment and Conveyance.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
Section
2. Purchase
and Conveyance.
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the actual aggregate principal balance of the Mortgage
Loans accepted by the Purchaser on each Closing Date, together with the
related Mortgage Files and all rights and obligations arising under the
documents contained therein.
The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in the
form attached hereto as Exhibit 14 (the “Assignment and Conveyance
Agreement”).
-17-
With
respect to each Mortgage Loan purchased, the Purchaser shall own and be entitled
to receive: (a) all scheduled principal due after the related Cut-off Date,
(b) all other payments and/or 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 Servicer after the related Cut-off Date shall belong to
the
Seller), and (c) all payments of interest on the Mortgage Loans, net of the
Servicing Fee (minus that portion of any such interest payment that is allocable
to the period prior to the related Cut-off Date).
For
the
purposes of this Agreement, payments of scheduled principal and interest prepaid
for a Due Date beyond the related Cut-off Date shall not be applied to reduce
the Stated Principal Balance as of the related Cut-off Date. Such prepaid
amounts (minus the applicable Servicing Fee) shall be the property of the
Purchaser. The Seller shall remit to the Servicer for deposit any such prepaid
amounts into the Custodial Account, which account is established for the benefit
of the Purchaser, for remittance by the Servicer to the Purchaser on the
appropriate Remittance Date. All payments of principal and interest, less the
applicable Servicing Fee, due on a Due Date following the related Cut-off Date
shall belong to the Purchaser.
Section
3. Mortgage
Loan Schedule.
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on
each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary Mortgage Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The related Mortgage Loan
Schedule shall be the related Preliminary Mortgage Schedule with those Mortgage
Loans which have not been funded prior to the related Closing Date
deleted.
Section
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment as
provided therein), multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed on the related Mortgage
Loan
Schedule, after application of scheduled payments of principal due on or before
the related Cut-off Date, but only to the extent such payments were actually
received. The initial principal amount of the related Mortgage Loans shall
be
the aggregate principal balance of the Mortgage Loans, so computed as of the
related Cut-off Date. If so provided in the related Purchase Price and Terms
Agreement, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current principal amount of
the
related Mortgage Loans as of the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price plus accrued
interest as set forth in the preceding paragraph shall be paid to the
Seller by wire transfer of immediately available funds to an account designated
by the Seller in writing.
-18-
Section
5. Examination
of Mortgage Files.
At
least ten (10) Business Days prior to the related Closing Date, the Seller
shall
either (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise be
acceptable to the Purchaser. Such examination of the Mortgage Files may be
made
by the Purchaser or its designee at any reasonable time before or after the
related Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans do not conform to any of the requirements set forth in the related
Purchase Price and Terms Agreement, or as an Exhibit annexed thereto, the
Purchaser may delete such Mortgage Loans from the related Mortgage Loan
Schedule, and such Deleted Mortgage Loan (or Loans) may be replaced by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser.
The
Purchaser may, at its option and without notice to the Seller, purchase some
or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not impair in any way the Purchaser’s (or any of its successor’s) rights
to demand repurchase, substitution or other relief as provided in this
Agreement. In the event that the Seller fails to deliver the Mortgage File
with
respect to any Mortgage Loan, the Seller shall, upon the request of the
Purchaser, repurchase such Mortgage Loan as the price and in the manner
specified in Subsection 7.03.
Section
6. Delivery
of Mortgage Loan Documents.
Subsection
6.01 Possession
of Mortgage Files.
The
contents of each Mortgage File required to be retained by or delivered to the
Servicer to service the Mortgage Loans pursuant to this Agreement and thus
not
delivered to the Purchaser, or its designee, are and
shall
be held in trust by the Servicer for the benefit of the Purchaser as the owner
thereof. The Servicer’s possession of any portion of each such Mortgage File is
at the will of the Purchaser
for the sole purpose of facilitating servicing of the Mortgage Loans pursuant
to
this Agreement, and such retention and possession by the Servicer shall be
in a
custodial capacity only.
The
ownership of each Mortgage Note, each Mortgage and the contents of each Mortgage
File is vested in the Purchaser and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Servicer shall immediately vest in the Purchaser and shall
be
retained and maintained, in trust, by the Servicer at the will of the Purchaser
in such custodial capacity only.
The
Mortgage File retained by the Servicer with respect to each Mortgage Loan
pursuant to this Agreement shall be appropriately identified in the Servicer’s
computer system and/or books and records to reflect clearly the sale of such
related Mortgage Loan to the Purchaser. The Servicer shall release from its
custody the contents of any Mortgage File retained by it only in accordance
with
this Agreement, except when such release is required in connection with a
repurchase of any such Mortgage Loan pursuant to Subsection 7.03 or if
required under applicable law or court order.
Subsection
6.02 Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller; provided,
however,
that if
a Mortgage has been recorded in the name of MERS or its designee, the Seller
is
shown as the owner of the related Mortgage Loan on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Notwithstanding the foregoing, ownership of each
Mortgage and the related Mortgage Note shall be vested solely in the Purchaser
or the appropriate designee of the Purchaser, as the case may be. All rights
arising out of the Mortgage Loans including, but not limited to, all funds
received by the Servicer after the related Cut-off Date on or in connection
with
a Mortgage Loan as provided in Section 2 shall be vested in the Purchaser
or one or more designees of the Purchaser; provided,
however,
that
all such funds received on or in connection with a Mortgage Loan as provided
in
Section 2 shall be received and held by the Servicer in trust for the
benefit of the Purchaser or the appropriate designee of the Purchaser, as the
case may be, as the owner of the Mortgage Loans pursuant to the terms of this
Agreement.
-19-
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the related Mortgage Loans by
the
Seller and not a pledge of such Mortgage Loans by the Seller to the Purchaser
to
secure a debt or other obligation of the Seller. Consequently, the sale of
each
Mortgage Loan shall be reflected as a purchase on the Purchaser’s business
records, tax returns and financial statements, and as a sale of assets on the
Seller’s business records, tax returns and financial statements.
Subsection
6.03 Delivery
of Mortgage Loan Documents.
The
Seller shall, at least two (2) Business Days prior to the related Closing
Date (or such later date as the Purchaser may reasonably request), deliver
and
release to the Purchaser, or its designee, the Mortgage Loan Documents with
respect to each Mortgage Loan pursuant to a bailee letter agreement.
In
connection with the foregoing, the Seller shall indemnify the Purchaser and
its
present and former directors, officers, employees and agents and any Successor
Servicer and its present and former directors, officers, employees and agents,
and hold such parties harmless against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and other
costs and expenses based on or grounded upon, or resulting from, the fact that
any Mortgage Loan is not covered by an ALTA or CLTA lender’s title insurance
policy. For purposes of the previous sentence, “Purchaser” shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were “Purchasers” under this Agreement and “Successor Servicer” shall
mean any Person designated as the Successor Servicer pursuant to this Agreement
and any and all Persons who previously were “Successor Servicers” pursuant to
this Agreement.
To
the
extent received by it, the Servicer shall forward to the Purchaser, or its
designee, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with
this Agreement within two (2) weeks after their execution; provided,
however,
that
the Servicer shall provide the Purchaser, or its designee, with a copy,
certified by the Servicer as a true copy, of any such document submitted for
recordation within two (2) weeks after its execution, and shall promptly
provide the original of any document submitted for recordation or a copy of
such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within two (2) weeks following receipt of the
original document by the Servicer; provided,
however,
that
such original recorded document or certified copy thereof shall be delivered
to
the Purchaser no later
than
180 days following the related Closing Date, unless there has been a delay
at the applicable recording office.
-20-
If
the
original or copy of any document submitted for recordation to the appropriate
public recording office is not delivered to the Purchaser or its designee within
180 days following the related Closing Date, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection 7.03.
The
foregoing repurchase obligation shall not apply if the Seller cannot cause
the
Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided
that
(i) the Servicer shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer’s
certificate of a servicing officer of the Servicer, confirming that such
document has been accepted for recording, and (ii) such document is
delivered within twelve (12) months of the related Closing
Date.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall be
responsible for recording the Assignments of Mortgage and shall be reimbursed
by
the Seller for the costs associated therewith pursuant to the preceding
sentence.
Subsection
6.04 MERS
Designated Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on or prior
to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder on
the
MERS System. In addition, on or prior to the related Closing Date, Seller shall
provide the Custodian and the Purchaser with a MERS Report listing the Purchaser
as the Investor, the Custodian as custodian and no Person listed as Interim
Funder with respect to each MERS Designated Mortgage Loan.
Section
7. Representations,
Warranties and Covenants; Remedies for Breach.
Subsection
7.01 Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser and its successors and
assigns that, as to each Mortgage Loan, as of the related Closing Date for
such
Mortgage Loan:
(a) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor
has any payment under the Mortgage Loan been 30 days or more delinquent at
any time since the origination of the Mortgage Loan;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date
of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one (1) month the
related Due Date of the first installment of principal and
interest;
-21-
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, from the date of origination except by a written
instrument which has been recorded, if necessary to protect the interests of
the
Purchaser, and which has been delivered to the Custodian or to such other Person
as the Purchaser shall designate in writing, and the terms of which are
reflected in the related Mortgage Loan Schedule. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, if any, to the extent required by
the
policy, and its terms are reflected on the related Mortgage Loan Schedule,
if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related 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;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the Underwriting Guidelines and the Xxxxxx Xxx Guides or by
Xxxxxxx Mac. If required by the National Flood Insurance Act of 1968, as
amended, each Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms with the Underwriting Guidelines and the
Xxxxxx Xxx and Xxxxxxx Mac guidelines. All individual insurance policies contain
a standard mortgagee clause naming the Seller and its successors and
assigns as mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy
at
the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
such Mortgagor’s cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance policy
is the valid and binding obligation of the insurer, is in full force and effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained or
realized by the Seller;
-22-
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, predatory, abusive and fair lending laws, equal credit
opportunity and disclosure laws or unfair and deceptive practice laws applicable
to the Mortgage Loans, including, without limitation, any provisions relating
to
Prepayment Penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations, and the Seller shall maintain in its possession, available
for
the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Type
of Mortgaged Property.
With
respect to a Mortgage Loan that is not a Co-op Loan and is not secured by an
interest in a leasehold estate, the Mortgaged Property is a fee simple estate
that consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a condominium project, or an individual unit
in
a planned unit development (or, with respect to each Co-op Loan, an individual
unit in a residential cooperative housing corporation); provided, however,
that
any condominium unit, planned unit development or residential cooperative
housing corporation shall conform with the Underwriting Guidelines. No portion
of the Mortgaged Property (or underlying Mortgaged Property, in the case of
a
Co-op Loan) is used for commercial purposes, and since the date of origination,
no portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. None of the Mortgaged Properties are
Manufactured Homes, log homes, mobile homes, geodesic domes or other unique
property types;
-23-
(j) Valid
First or Second Lien.
The
Mortgage is a valid, subsisting, enforceable and perfected, first or second
lien
(as applicable) on the Mortgaged Property, including all buildings and
improvements 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:
|
(i)
|
the
lien of current real property taxes and assessments not yet due and
payable;
|
|
(ii)
|
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred
to in
the lender’s title insurance policy delivered to the originator of the
Mortgage Loan and (a) specifically referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan
or (b) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such appraisal;
and
|
|
(iii)
|
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.
|
|
(iv)
|
with
respect to Second Lien Mortgage Loans, the lien on the first mortgage
on
the Mortgaged Property.
|
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected (A) first lien and first priority
security interest with respect to each first lien mortgage loan or
(B) second lien and second priority security interest with respect to each
Second Lien Mortgage Loan, in either case, on the property described therein
and
the Seller has full right to sell and assign the same to the
Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments representing
the Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security interest intended to be provided by the related
Security Agreement;
-24-
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions therein
relating to Prepayment Penalties). All parties to the Mortgage Note, the
Mortgage and any other such related agreement had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller in connection with the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of any Person, including without limitation, the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, except as may be required
for
the Servicer to service such Mortgage Loan. The Seller intends to relinquish
all
rights to possess, control and monitor the Mortgage Loan, except as may be
required for the Servicer to service such Mortgage Loan. After the related
Closing Date, the Seller will have no right to modify or alter the terms of
the
sale of the Mortgage Loan and the Seller will have no obligation or right to
repurchase the Mortgage Loan or substitute another Mortgage Loan, except as
provided in this Agreement;
-25-
(n) Doing
Business.
All
parties which have had any legal 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) either (i) organized under the
laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national
bank having a principal office in such state, or (3) not doing business in
such state;
(o) CLTV,
LTV, PMI Policy.
No
Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV in excess of 100%.
No Mortgage Loan has an LTV greater than 100%. Any Mortgage Loan that had at
the
time of origination an LTV in excess of 80% is insured as to payment defaults
by
a PMI Policy. Any PMI Policy in effect covers the related Mortgage Loan for
the
life of such Mortgage Loan. All provisions of such PMI Policy have been and
are
being complied with, such policy is in full force and effect, and all premiums
due thereunder have been paid. No action, inaction, or event has occurred and
no
state of facts exists that has, or will result in the exclusion from, denial
of,
or defense to coverage. Any Mortgage Loan subject to a PMI Policy obligates
the
Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and
charges in connection therewith. The Mortgage Interest Rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium;
(p) Title Insurance.
With
respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan is
covered by an ALTA lender’s title insurance policy or other generally acceptable
form of policy or insurance acceptable under the Underwriting Guidelines and
to
Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance policy is issued by
a
title insurer acceptable under the Underwriting Guidelines and to Xxxxxx Mae
or
Xxxxxxx Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Seller, its successors and assigns, as to
the
first priority lien (with respect to first lien Mortgage Loans) or second
priority lien (with respect to Second Lien Mortgage Loans) of the Mortgage
in
the original principal amount of the Mortgage Loan (or to the extent a Mortgage
Note provides for negative amortization, the maximum amount of negative
amortization in accordance with the Mortgage), subject only to the exceptions
contained in clauses (i) and (ii) of clause (j) of this Subsection 7.02,
and in
the case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of
the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
-26-
(q) No
Defaults.
Other
than payments due but not yet 30 days or more delinquent, there is no
default, breach, violation or event which would permit acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration. With respect to each Second Lien Mortgage
Loan,
(i) the prior mortgage is in full force and effect, (ii) there is no default,
breach, violation or event of acceleration existing under such prior mortgage
or
the related mortgage note, (iii) as of the related Closing Date, no event which,
with the passage of time or with notice and the expiration of any grace or
cure
period, would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the prior mortgage contains a provision which allows
or (B) applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure
any
default by payment in full or otherwise under the prior mortgage;
(r) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part
of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank, a commercial bank,
credit union, insurance company or other similar institution which is supervised
and examined by a federal or state authority. Principal payments on the Mortgage
Loan commenced no more than seventy days after funds were disbursed in
connection with the Mortgage Loan. The Mortgage Interest Rate as well as, in
the
case of an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic
Rate Cap and the Periodic Rate Floor are as set forth on the related Mortgage
Loan Schedule. The Mortgage Interest Rate is adjusted, with respect to
Adjustable Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal
the Index plus the Gross Margin (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty (30) years from commencement of amortization. Unless
otherwise specified on the related Mortgage Loan Schedule, the Mortgage Loan
is
payable on the first day of each month. The Mortgage Loan does not require
a
balloon payment on its stated maturity date; and by its original terms or any
modification thereof, does not provide for amortization beyond its scheduled
maturity date;
-27-
(u) Customary
Provisions.
The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a
copy of which is attached to the related Assignment and Conveyance as
Exhibit C).
The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae
and no representations have been made to a Mortgagor that are inconsistent
with
the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property.
The
Mortgaged Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. Unless otherwise specified on the related Mortgage
Loan
Schedule, the Mortgagor represented at the time of origination of the Mortgage
Loan that the Mortgagor would occupy the Mortgaged Property as the Mortgagor’s
primary residence;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (j)
above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
There
are no circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit standing
that can reasonably be expected to cause private institutional investors who
invest in prime mortgage loans similar to the Mortgage Loan to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or adversely affect the value or marketability of the Mortgage
Loan,
or cause the Mortgage Loan to prepay during any period materially faster or
slower than the mortgage loans originated by the Seller generally;
-28-
(aa) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered under this Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true
and
accurate Mortgage File in compliance with Exhibit 2
attached
hereto, except for such documents the originals of which have been delivered
to
the Custodian;
(bb) Transfer
of Mortgage Loans.
The
Assignment of Mortgage (except with respect to any Mortgage that has been
recorded in the name of MERS or its designee) with respect to each Mortgage
Loan
is in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(cc) Due-On-Sale.
With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(dd) Assumability.
With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid
by
any source other than the Mortgagor nor does it contain any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ff) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the applicable Cut-off Date
have
been consolidated with the outstanding principal amount secured by the Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second lien priority
(as applicable) by a title insurance policy, an endorsement to the policy
insuring the Mortgagee’s consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(gg) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, hurricane, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
-29-
(hh) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The
origination, servicing and collection practices used by the Seller with respect
to the Mortgage Loan have been in all respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
respects legal and proper and prudent in the mortgage origination and servicing
business. With respect to escrow deposits and Escrow Payments, all such payments
are in the possession of, or under the control of, the Seller and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected
in
full compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item
that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due the Seller have
been capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate adjustments have been made in strict compliance with state and federal
law
and the terms of the related Mortgage and Mortgage Note on the related Interest
Rate Adjustment Date. If, pursuant to the terms of the Mortgage Note, another
index was selected for determining the Mortgage Interest Rate, the same index
was used with respect to each Mortgage Note which required a new index to be
selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller executed and delivered any and all notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments. Any
interest required to be paid pursuant to state, federal and local law has been
properly paid and credited;
(ii) Conversion
to Fixed Interest Rate.
The
Mortgage Loan does not contain a provision whereby the Mortgagor is permitted
to
convert the Mortgage Interest Rate from an adjustable rate to a fixed
rate;
(jj) Other
Insurance Policies; No Defense to Coverage.
No
action, inaction or event has occurred and no state of facts exists or has
existed on or prior to the Closing Date that has resulted or will result in
the
exclusion from, denial of, or defense to coverage under any applicable hazard
insurance policy, PMI Policy or bankruptcy bond (including, without limitation,
any exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder
to
the insured), irrespective of the cause of such failure of coverage. The Seller
has caused or will cause to be performed any and all acts required to preserve
the rights and remedies of the Purchaser in any insurance policies applicable
to
the Mortgage Loans including, without limitation, any necessary notifications
of
insurers, assignments of policies or interests therein, and establishments
of
coinsured, joint loss payee and mortgagee rights in favor of the Purchaser.
In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
-30-
(kk) No
Violation of Environmental Laws.
To the
best of the Seller’s knowledge, the Mortgaged Property is free from any and all
toxic or hazardous substances and there exists no violation of any local, state
or federal environmental law, rule or regulation. To the best of the Seller’s
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or
regulation with respect to the Mortgage Property; and nothing further remains
to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified the Seller, and the Seller has no knowledge, of
any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act or other similar state statute;
(mm) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the origination of the Mortgage Loan application by a Qualified
Appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(nn) Disclosure
Materials.
The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by, and the Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans. The Seller
shall maintain such statement in the Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow
Analysis.
If
applicable, with respect to each Mortgage Loan, the Seller has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(qq) Credit
Information.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded by the terms of the Mortgage Loan Documents from furnishing the same
to any subsequent or prospective purchaser of such Mortgage. This representation
and warranty is a Deemed Material Breach Representation;
-31-
(rr) Leaseholds.
If the
Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the Mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the Mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the jurisdiction
in
which the Mortgaged Property is located;
(ss) Prepayment
Penalty.
The
Mortgage Loan is subject to a Prepayment Penalty as provided in the related
Mortgage Note except as set forth on the related Mortgage Loan Schedule. With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each such
Prepayment Penalty is enforceable and will be enforced by the Seller for the
benefit of the Purchaser, and each Prepayment Penalty is permitted pursuant
to
federal, state and local law. Each such Prepayment Penalty is in an amount
not
more than 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 prior to October, 1, 2002. With respect
to
Mortgage Loans originated on or after October 1, 2002, the duration of the
Prepayment Penalty period shall not exceed three (3) years from the date of
the
Mortgage Note unless the Mortgage Loan was modified to reduce the Prepayment
Penalty period to no more than three (3) years from the date of such Mortgage
Loan and the Mortgagor was notified in writing of such reduction in Prepayment
Penalty period. With respect to any Mortgage Loan that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (i)
the
Mortgage Loan provides some benefit to the Mortgagor (e.g. a rate or fee
reduction) in exchange for accepting such Prepayment Penalty, (ii) the Mortgage
Loan’s originator had a written policy of offering the Mortgagor or requiring
third-party brokers to offer the Mortgagor, the option of obtaining a mortgage
loan that did not require payment of such a penalty and (iii) the Prepayment
Penalty was adequately disclosed to the Mortgagor in the mortgage loan documents
pursuant to applicable state, local and federal law. This representation and
warranty is a Deemed Material Breach Representation;
(tt) Predatory
Lending Regulations.
No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable and no Mortgage
Loan originated on or after October 1, 2002 through March 6, 2003 is
governed by the Georgia Fair Lending Act. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law. The Mortgaged Property is not
located in a jurisdiction where a breach of this representation with respect
to
the related Mortgage Loan may result in additional assignee liability to the
Purchaser, as determined by Purchaser in its reasonable discretion. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx Mae’s Selling Guide. This representation and
warranty is a Deemed Material Breach Representation;
(uu) Single-premium
credit life insurance policy.
In
connection with the origination of any Mortgage Loan, no proceeds from any
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, property, accident,
unemployment or health insurance product) or debt cancellation agreement as
a
condition of obtaining the extension of credit. No Mortgagor obtained a prepaid
single-premium credit insurance policy (e.g., life, disability, property,
accident, unemployment or health insurance product) in connection with the
origination of the Mortgage Loan; no proceeds from any Mortgage Loan were used
to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan. This representation and warranty is a Deemed Material Breach
Representation;
-32-
(vv) Qualified
Mortgage.
The
Mortgage Loan is a qualified mortgage under Section 860G(a)(3) of the
Code;
(ww) Tax
Service Contract.
Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
issued by First American Real Estate Tax Service, and such contract is
transferable;
(xx) Origination.
No
predatory or deceptive lending practices, including, without limitation, the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
(yy) Recordation.
Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of being
recorded;
(zz) Co-op
Loans. With
respect to a Mortgage Loan that is a Co-op Loan, the stock that is pledged
as
security for the Mortgage Loan is held by a person as a tenant-stockholder
(as
defined in Section 216 of the Code) in a cooperative housing corporation
(as defined in Section 216 of the Code);
(aaa) [Reserved];
(bbb) [Reserved];
(ccc) [Reserved];
(ddd) Arbitration.
With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the Mortgagor to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
the Mortgage Loan transaction. This representation and warranty is a Deemed
Material Breach Representation;
(eee) Flood
Service Contract.
Each
Mortgage Loan is covered by a paid in full, life of loan, flood service contract
issued by First American Real Estate Tax Service or Fidelity, and such contract
is transferable;
-33-
(fff) Litigation.
The
Mortgage Loan is not subject to any outstanding litigation for fraud,
origination, predatory lending, servicing or closing practices;
(ggg) Origination
Practices.
The
Mortgagor was not encouraged or required to select a Mortgage Loan product
offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan’s origination, such Mortgagor did not qualify taking into account such
facts as, without limitation, the Mortgage Loan’s requirements and the
Mortgagor’s credit history, income, assets and liabilities and debt-to-income
ratios for a lower-cost credit product then offered by the Mortgage Loan’s
originator or any affiliate of the Mortgage Loan’s originator. If, at the time
of loan application, the Mortgagor may have qualified for a lower-cost credit
product then offered by any mortgage lending affiliate of the Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration. For a Mortgagor who seeks
financing through a Mortgage Loan originator’s higher-priced subprime lending
channel, the Mortgagor was directed towards or offered the Mortgage Loan
originator’s standard mortgage line if the Mortgagor was able to qualify for one
of the standard products. This representation and warranty is a Deemed Material
Breach Representation;
(hhh) Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan. This representation and warranty
is a
Deemed Material Breach Representation;
(iii) Points
and Fees.
No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
greater than (i) 1,000 or (ii) 5% of the principal amount of such Mortgage
Loan,
whichever is greater. For purposes of this representation, such 5% limitation
is
calculated in accordance with Xxxxxx Mae’s anti-predatory lending requirements
as set forth in the Xxxxxx Mae Guides and “points and fees” (x) include
origination, underwriting, broker and finder fees and charges that the mortgagee
imposed as a condition of making the Mortgage Loan, whether they are paid to
the
mortgagee or a third party, and (y) exclude bona fide discount points, fees
paid
for actual services rendered in connection with the origination of the Mortgage
Loan (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood insurance
policies, state and local transfer taxes or fees, escrow deposits for the future
payment of taxes and insurance premiums, and other miscellaneous fees and
charges that, in total, do not exceed 0.25% of the principal amount of such
Mortgage Loan. This representation and warranty is a Deemed Material Breach
Representation;
(jjj) Fees
Charges.
All
fees and charges (including finance charges) and whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan has been disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. This
representation and warranty is a Deemed Material Breach Representation;
and
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(kkk) Option
ARM Mortgage Loans.
With
respect to each Option ARM Mortgage Loan, (a) the Seller (or a servicer on
its
behalf) either did not provide different payment options after a “teaser period”
or, if different payment options were provided, applied each payment received
under the Option ARM Mortgage Loan correctly in accordance with Accepted
Servicing Practices, (b) unless otherwise set forth on the Mortgage Loan
Schedule, the Option ARM Mortgage Loan has no negative amortization as of the
related Closing Date and (c) such Option ARM Mortgage Loan was serviced in
accordance with Accepted Servicing Practices and all payment histories are
set
forth on the Mortgage Loan Schedule that would be required to service the Option
ARM Mortgage Loans after the related Closing Date in accordance with Accepted
Servicing Practices.
(lll) Second
Lien Loans.
With
respect to each Second Lien Loan:
|
(i)
|
No
Negative Amortization of Related First Lien Loan.
The related first lien loan does not permit negative
amortization;
|
|
(ii)
|
Request
for Notice; No Consent Required.
Where required or customary in the jurisdiction in which the Mortgaged
Property is located, the original lender has filed for record a request
for notice of any action by the related senior lienholder, and the
Seller
has notified such senior lienholder in writing of the existence of
the
Second Lien Loan and requested notification of any action to be taken
against the Mortgagor by such senior lienholder. Either (a) no consent
for
the Second Lien Loan is required by the holder of the related first
lien
loan or (b) such consent has been obtained and is contained in the
related
Mortgage File;
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|
(iii)
|
No
Default Under First Lien.
To the best of Seller’s knowledge, the related first lien loan is in full
force and effect, and there is no default lien, breach, violation
or event
which would permit acceleration existing under such first lien mortgage
or
mortgage note, and no event which, with the passage of time or with
notice
and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event which would permit acceleration
under
such first lien loan;
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|
(iv)
|
Right
to Cure First Lien.
The related first lien mortgage contains a provision which provides
for
giving notice of default or breach to the mortgagee under the Mortgage
Loan and allows such mortgagee to cure any default under the related
first
lien mortgage; and
|
|
(v)
|
Principal
Residence.
The related Mortgaged Property is the Mortgagor’s principal residence.
This representation and warranty is a Deemed Material and Adverse
Representation.
|
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Subsection
7.02 Seller
and Servicer Representations.
(A)
The
Seller hereby represents and warrants to the Purchaser and its successors and
assigns that, as of the related Closing Date:
(a) Due
Organization and Authority.
The
Seller is a New York corporation, validly existing, and in good standing under
the laws of its jurisdiction of incorporation or formation and has all licenses
necessary to carry on its business as now being conducted, except where the
failure to be licensed or qualified would not have a material effect on the
Seller or on any Mortgage Loan, and is licensed, qualified and in good standing
in the states where the 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 Seller. The Seller has corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement has been duly executed and delivered and constitutes
the valid, legal, binding and enforceable obligation of the Seller, except
as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law.
All
requisite corporate action has been taken by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms;
(b) No
Consent Required.
No
consent, approval, authorization or order is required for the transactions
contemplated by this Agreement from any court, governmental agency or body,
or
federal or state regulatory authority having jurisdiction over the Seller is
required or, if required, such consent, approval, authorization or order has
been or will, prior to the related Closing Date, be obtained;
(c) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(d) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition or origination
of
the Mortgage Loans by the Seller, the sale of the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of (i) the Seller’s charter or by-laws or (ii) any legal restriction
or any agreement or instrument to which the Seller is now a party or by which
it
is bound, or constitute a default or result in an acceleration under any of
the
foregoing, except, in the case of clause (ii), any defaults or breaches that
would not, either in any one instance or in the aggregate, result in a material
adverse effect on the Seller, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Seller or its property is
subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have a material adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
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(e) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or, to the best
knowledge of the Seller, threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, would result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or which would draw into question
the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Seller contemplated herein,
or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) Ability
to Perform; Solvency.
The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this Agreement. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination.
The
Seller’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon the Underwriting Guidelines,
and is in no way made as a result of Purchaser’s decision to purchase, or not to
purchase, or the price Purchaser may offer to pay for, any such mortgage loan,
if originated;
(h) Anti-Money
Laundering Laws.
The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Seller has established an anti-money laundering compliance program as required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws
(i) Financial
Statements; Other Information.
The
Seller has delivered to the Purchaser financial statements as to its last three
complete fiscal years and any later quarter ended more than 60 days
prior to the execution of this Agreement. All such financial statements fairly
present the pertinent results of operations and changes in financial position
for each of such periods and the financial position at the end of each such
period of the Seller and its subsidiaries and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as set forth in the notes thereto. In addition,
the
Seller has delivered information as to its loan gain and loss experience in
respect of foreclosures and its loan delinquency experience for the immediately
preceding three year period, in each case with respect to mortgage loans owned
by it and such mortgage loans serviced for others during such period, and all
such information so delivered shall be true and correct in all material
respects. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller’s
financial Statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement;
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(j) Ability
to Service.
Seller
has the facilities, procedures, and experienced personnel necessary for the
sound servicing of mortgage loans of the same type as the Mortgage Loans. The
Seller is duly qualified, licensed, registered and otherwise authorized under
all applicable federal, state and local laws, and regulations, if applicable,
meets the minimum capital requirements set forth by HUD, the OTS, the OCC or
the
FDIC, if applicable, and is in good standing to enforce, originate, sell
mortgage loans to, and service mortgage loans in the jurisdiction wherein the
Mortgaged Properties are located;
(k) [Reserved];
(l) Selection
Process.
The
Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date as to which
the representations and warranties set forth in Subsection 7.01
could be
made and such selection was not made in a manner so as to affect adversely
the
interests of the Purchaser;
(m) Delivery
to the Custodian.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, shall be delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement. With respect to each
Mortgage Loan, the Servicer will be in possession of a complete Mortgage File
in
compliance with Exhibit 2
hereto,
except for such documents as will be delivered to the Custodian;
(n) Mortgage
Loan Characteristics.
The
characteristics of the related Mortgage Loan Package are as set forth on the
description of the pool characteristics for the applicable Mortgage Loan Package
delivered pursuant to Section 9
on the
related Closing Date in the form attached as Exhibit B
to each
related Assignment and Conveyance Agreement;
(o) No
Untrue Information.
Neither
this Agreement nor any information, statement, tape, diskette, report, form,
or
other document furnished or to be furnished pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transaction or Whole Loan Transfer)
contains or will contain any untrue statement of fact or omits or will omit
to
state a fact necessary to make the statements contained herein or therein not
misleading;
(p) No
Brokers.
The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans;
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(q) Sale
Treatment.
The
Seller expects to be advised by its independent certified public accountants
that under generally accepted accounting principles the transfer of the Mortgage
Loans will be treated as a sale on the books and records of the Seller and
the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
and
(r) Reasonable
Purchase Price.
The
consideration received by the Seller upon the sale of the Mortgage Loans under
this Agreement constitutes fair consideration and reasonably equivalent value
for the Mortgage Loans.
(B)
The
Servicer hereby warrants and represents to the Purchaser and its successor
and
assigns as of the Closing Date:
(a) Due
Organization and Authority.
The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of Maryland 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 Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the related Mortgage Loan in accordance with the terms of this Agreement;
the
Servicer 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 or transfer to be delivered
pursuant to this Agreement) by the Servicer 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
Servicer; and all requisite action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its
terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Servicer’s certificate of formation or limited liability company agreement or
any legal restriction or any agreement or instrument to which the Servicer
is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability
to Service.
The
Servicer is a seller/servicer of residential mortgage loans, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans;
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(e) Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(f) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or, to the best of
the
Servicer’s knowledge, threatened against the Servicer which, either in any one
instance or in the aggregate, may result in any material adverse change in
the
business, operations, financial condition, properties or assets of the Servicer,
or in any material impairment of the right or ability of the Servicer to carry
on its business substantially as now conducted, or in any material liability
on
the part of the Servicer, or which would draw into question the validity of
this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or which
would be likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement;
(g) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement or the servicing 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;
(h) 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;
(i) Prior
Servicing.
Prior
to the date hereof, each Mortgage Loan has been serviced in all material
respects in strict compliance with Accepted Servicing Practices and the Servicer
has reported the Mortgagor credit files to each of the three credit repositories
on a monthly basis in a timely manner; and
(j) Reasonable
Servicing Fee.
The
Servicer 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 Servicer, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement.
Subsection
7.03 Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to
the Purchaser and shall inure to the benefit
of the Purchaser and its successors and assigns, notwithstanding any restrictive
or qualified endorsement on any Mortgage Note or Assignment of Mortgage or
the
examination or failure to examine any Mortgage File. Upon discovery by either
the Seller, the Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other relevant parties.
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Within
sixty (60) days after the earlier of either discovery by or notice to
the Seller of any breach of a representation or warranty, which materially
and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case
of
a representation and warranty relating to a particular Mortgage Loan) (a
“Breach”),
the
Seller shall use its best efforts promptly to cure such Breach in all material
respects and, if such Breach cannot be cured within 60 days of the earlier
of
either discovery by or notice to the Seller of such Breach, the Seller shall,
at
the Purchaser’s option, repurchase such affected Mortgage Loan or Mortgage Loans
at the Repurchase Price. Notwithstanding the above sentence, (i) within sixty
(60) days after the earlier of either discovery by, or notice to, the
Seller of any breach of the representations or warranties set forth in clause
(vv) of Subsection 7.01,
the
Seller shall repurchase such Mortgage Loan at the Repurchase Price and
(ii) any breach of a Deemed Material Breach Representation shall
automatically be deemed to materially and adversely affect the value of the
Mortgage Loan and the interest of the Purchaser therein. In the event that
a
Breach shall involve any representation or warranty set forth in Subsection 7.02,
and
such Breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Seller of such Breach, all of the Mortgage Loans
affected by such Breach shall, at the Purchaser’s option, be repurchased by the
Seller at the Repurchase Price. However, if the Breach, shall involve a
representation or warranty set forth in Subsection 7.01
(other
than the representations and warranties set forth in clause (vv) of such
Subsection or any Deemed Material Breach Representation) and the Seller
discovers or receives notice of any such Breach within one hundred twenty
(120) days of the related Closing Date, the Seller shall, at the
Purchaser’s option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan and substitute in its place a Qualified Substitute
Mortgage Loan or Qualified Substitute Mortgage Loans; provided,
however,
that
any such substitution shall be effected within such one hundred twenty
(120) days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan at
the
Repurchase Price. Any repurchase of a Mortgage Loan pursuant to the foregoing
provisions of this Subsection 7.03
shall
occur on a date designated by the Purchaser, and acceptable to the Seller,
and
shall be accomplished by the Seller remitting to the Servicer for deposit the
amount of the Repurchase Price in the Custodial Account for distribution to
the
Purchaser on the next scheduled Remittance Date.
At
the
time of repurchase of any deficient Mortgage Loan (or removal of any Deleted
Mortgage Loan), the Purchaser and the Seller shall arrange for the assignment
of
the repurchased Mortgage Loan (or Deleted Mortgage Loan) to the Seller or its
designee and the delivery to the Seller of any documents held by the Purchaser
relating to the repurchased Mortgage Loan in the manner required by this
Agreement with respect to the purchase and sale of such Mortgage Loan on the
related Closing Date. In the event the Repurchase Price is deposited in the
Custodial Account, the Seller shall, simultaneously with its remittance to
the
Servicer of such Repurchase Price for deposit, give written notice to the
Purchaser that such deposit has taken place. Upon such repurchase, the Seller
shall amend the related Mortgage Loan Schedule to reflect the withdrawal of
the
repurchased Mortgage Loan from this Agreement.
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As
to any
Deleted Mortgage Loan for which the Seller substitutes one or more Qualified
Substitute Mortgage Loans, the Seller shall be deemed to have made 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. No substitution will be made in any
calendar month after the Determination Date for such month. The Seller shall
effect such substitution by delivering to the Purchaser for each Qualified
Substitute Mortgage Loan the Mortgage Note, the Mortgage, the Assignment of
Mortgage and such other documents and agreements as are required by Subsection 6.03.
The
Seller shall remit to the Servicer for deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on each Qualified Substitute Mortgage
Loan 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 Seller. For the month of substitution, distributions
to
the Purchaser shall include the Monthly Payment due on any Deleted Mortgage
Loan
in the month of substitution, and the Seller shall thereafter be entitled to
retain all amounts subsequently received by the Seller in respect of such
Deleted Mortgage Loan. The Seller shall give written notice to the Purchaser
that such substitution has taken place and shall amend the related Mortgage
Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms
of
this Agreement and the substitution of the Qualified Substitute Mortgage Loan.
Upon such substitution, each Qualified Substitute Mortgage Loan shall be subject
to the terms of this Agreement in all respects, and the Seller shall be deemed
to have made with respect to such Qualified Substitute Mortgage Loan, as of
the
date of substitution, the covenants, representations and warranties set forth
in
Subsections 7.01
and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be remitted to the Servicer by the Seller
for
distribution by the Servicer in the month of substitution pursuant to
Subsection 11.04.
Accordingly, on the date of such substitution, the Seller will remit to the
Servicer from its own funds for deposit into the Custodial Account an amount
equal to the amount of such shortfall plus one month’s interest thereon at the
Mortgage Loan Remittance Rate.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its successors and assigns and its present and
former directors, officers, employees and agents and any Successor Servicer
and
its present and former directors, officers, employees and agents and hold such
parties harmless against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses 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 Seller representations and
warranties contained in this Agreement or any Reconstitution Agreement. For
purposes of this paragraph, “Purchaser” shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
“Purchasers” under this Agreement and “Successor Servicer” shall mean any Person
designated as the Successor Servicer pursuant to this Agreement and any and
all
Persons who previously were “Successor Servicers” pursuant to this Agreement. It
is understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03
to cure,
repurchase or substitute for a defective Mortgage Loan, and to indemnify the
Purchaser and Successor Servicer under Subsection 12.01
constitute the sole remedies of the Purchaser and Successor Servicer respecting
a breach of the representations and warranties set forth in Subsections 7.01
and
7.02.
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Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01
and
7.02
shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach, substitute a Qualified Substitute Mortgage
Loan,
or repurchase such Mortgage Loan as specified above and (iii) demand upon
the Seller by the Purchaser for compliance with this Agreement.
Section
8. Closing.
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each closing shall be
either: by telephone, confirmed by letter
or
wire as the parties shall agree, or conducted in person, at such place as the
parties shall agree. Each closing shall be subject to each of the following
conditions:
(a) at
least
two Business Days prior to the related Closing Date, the Seller shall deliver
to
the Purchaser a magnetic diskette, or transmit by modem, a listing on a
loan-level basis of the necessary information to compute the Purchase Price
of
the Mortgage Loans delivered on such Closing Date (including accrued interest),
and prepare a Mortgage Loan Schedule;
(b) all
of
the representations and warranties of the Seller in this Agreement shall be
true
and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute an Event of Default
under this Agreement;
(c) the
Purchaser’s attorneys shall have received in escrow, all Closing Documents as
specified in Section 9,
in such
forms as are agreed upon and acceptable to the Purchaser, duly executed by
all
signatories as required pursuant to the terms hereof; and
(d) all
other
terms and conditions of this Agreement shall have been complied
with.
Section
9. Closing
Documents.
On the
related Closing Date, the Seller shall deliver to the Purchaser’s attorneys in
escrow fully executed originals of:
(a) this
Agreement (to be executed and delivered only for the initial Closing
Date);
(b) the
related Purchase Price and Terms Agreement, executed in four
(4) counterparts;
(c) with
respect to the initial Closing Date, the Custodial Agreement, dated as of the
initial Cut-off Date;
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(d) with
respect to the initial Closing Date, a Custodial Account Certification in the
form attached as Exhibit 4
hereto
or a Custodial Account Letter Agreement in the form attached as Exhibit 5
hereto;
(e) with
respect to the initial Closing Date, an Escrow Account Certification in the
form
attached as Exhibit 6
hereto
or an Escrow Account Letter Agreement in the form attached as Exhibit 7
hereto;
(f) the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package, one copy
to
be attached hereto, one copy to be attached to the Custodian’s counterpart of
the Custodial Agreement, and one copy to be attached to the related Assignment
and Conveyance as the Mortgage Loan Schedule thereto;
(g) with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit 10
hereto
with respect to the Seller, including all attachments thereto and with respect
to subsequent Closing Dates, an Officer’s Certificate upon request of the
Purchaser; and
(h) with
respect to the initial Closing Date, an Opinion of Counsel of the Seller (who
may be an employee of the Seller), in the form of Exhibit 11
hereto
and with respect to subsequent Closing Dates, an Opinion of Counsel of the
Seller upon request of the Purchaser;
(i) with
respect to the initial Closing Date, an Opinion of Counsel of the Custodian
(who
may be an employee of the Custodian), in the form of an exhibit to the Custodial
Agreement, if required;
(j) a
Security Release Certification, in the form of Exhibit 12
or
Exhibit 13,
as
applicable, hereto executed by any person, as requested by the Purchaser, if
any
of the Mortgage Loans have at any time been subject to any security interest,
pledge or hypothecation for the benefit of such person;
(k) a
certificate or other evidence of merger or change of name, signed or stamped
by
the applicable regulatory authority, if any of the Mortgage Loans were acquired
by the Seller by merger or acquired or originated by the Seller while conducting
business under a name other than its present name, if applicable;
(l) with
respect to the initial Closing Date, the Underwriting Guidelines to be attached
hereto as Exhibit 8
and with
respect to each subsequent Closing Date, the Underwriting Guidelines to be
attached to the related Assignment and Conveyance;
(m) Assignment
and Conveyance Agreement in the form of Exhibit 14
hereto,
including all exhibits thereto;
(n) a
Custodian’s Certification or similar document, as required under the Custodial
Agreement; and
(o) a
MERS
Report reflecting the Purchaser as Investor, the Custodian as custodian and
no
Person as Interim Funder for each MERS Designated Mortgage Loan.
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The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
Section
10. Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys and custodial fees. All other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage including
recording fees, fees for title policy endorsements and continuations, fees
for
recording Assignments of Mortgage, and the Seller’s attorney’s fees, shall be
paid by the Seller.
Section
11. Administration
and Servicing of the Mortgage Loans.
Subsection
11.01 Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans in accordance with
this
Agreement and Accepted Servicing Procedures
and the terms of the Mortgage Notes and Mortgages, and shall have full power
and
authority, acting alone or through sub-servicers or agents, to do or cause
to be
done any and all things in connection with such servicing and administration
which the Servicer may deem necessary
or desirable and consistent with the terms of this Agreement. The Servicer
may
perform its servicing responsibilities through agents or independent
contractors, but shall not thereby be released from any of its responsibilities
hereunder.
Consistent
with the terms of this Agreement, the Servicer 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;
provided,
however,
that
(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent, and the Servicer has
the
consent of the Purchaser) the Servicer shall not permit any modification with
respect to any Mortgage Loan which materially and adversely affects the Mortgage
Loan, including without limitation, any modification that would defer or forgive
the payment of any principal or interest, change the outstanding principal
amount (except for actual payments of principal), make any future advances,
extend the final maturity date or change the Mortgage Interest Rate, as the
case
may be, with respect to such Mortgage Loan. Notwithstanding the foregoing,
the
Servicer shall not waive any Prepayment Penalty or portion thereof unless
(i) the enforceability thereof shall have been limited by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditors’ rights generally or is otherwise prohibited by law, or (ii) the
enforceability thereof shall have been permanently limited due to acceleration
in connection with a foreclosure or other involuntary payment or (iii) in
the Servicer’s reasonable judgment, (x) such waiver relates to a default or
a reasonably foreseeable default, (y) such waiver would maximize recovery
of total proceeds taking into account the value of such Prepayment Penalty
and
related Mortgage Loan and (z) doing so is standard and customary in
servicing Mortgage Loans (including any waiver of a Prepayment Penalty in
connection with a refinancing of a Mortgage Loan that is related to a default
or
reasonably foreseeable default). Except as provided in the preceding sentence,
in no event will the Servicer waive a Prepayment Penalty in connection with
a
refinancing of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default. If the Servicer waives or does not collect all or a portion
of a Prepayment Penalty relating to a Principal Prepayment in full or in part
due to any action or omission of the Servicer, other than as permitted above,
the Servicer shall deposit from its own funds without any right of reimbursement
therefor the amount of such Prepayment Penalty (or such portion thereof as
had
been waived for deposit) into the Custodial Account for distribution in
accordance with the terms of this Agreement. In connection with any waiver
of a
Prepayment Penalty by the Servicer, the Servicer shall account for such waiver
in its monthly reports as agreed upon by the Servicer and the Purchaser. Without
limiting the generality of the foregoing, the Servicer in its own name or acting
through sub-servicers or agents is hereby authorized and empowered by the
Purchaser when the Servicer believes it appropriate and reasonable in its best
judgment, 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 the Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Purchaser pursuant to the provisions of Subsection 11.12.
The
Servicer shall make all required Servicing Advances and shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided
to
them thereby. The Purchaser shall furnish to the Servicer any powers of attorney
and other documents reasonably necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties under this
Agreement.
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Notwithstanding
anything to the contrary in this Agreement, the Purchaser may at any time and
from time to time, in its sole discretion, upon written notice to the Seller,
with respect to (1) any REO Property or (2) all Mortgage Loans that
are 90 or more days delinquent as of the date of such notice and any
Mortgage Loans that subsequently become 90 or more days delinquent
following the date of such notice (for the purposes of this paragraph such
Mortgage Loans, “Delinquent
Mortgage Loans”),
either
(i) terminate the Seller’s servicing obligations hereunder with respect to
such REO Properties and Delinquent Mortgage Loans, upon reimbursement of any
unreimbursed advances owed to the Servicer and payment of the termination fee
referred to in Subsection 14.02,
or
(ii) assume the absolute right to direct the Seller to take such actions
with respect to such REO Property and Delinquent Mortgage Loans as the Seller
would otherwise be able to undertake pursuant to Subsection 11.12.
Upon
the effectiveness of any such termination of the Seller’s servicing obligations
with respect to any such REO Property or Delinquent Mortgage Loan, the Seller
shall deliver all agreements, documents, and instruments related thereto to
the
Purchaser, in accordance with Accepted Servicing Procedures and applicable
law
and shall transfer servicing to the Purchaser’s designee in accordance with
Acceptable Servicing Procedures.
Subsection
11.02 Liquidation
of Mortgage Loans.
If any
payment due under any Mortgage Loan 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 Servicer shall take such action as it shall deem
to
be in the best interest of the Purchaser. If any payment due under any Mortgage
Loan remains delinquent for a period of one hundred twenty (120) days
or more, the Servicer shall
commence foreclosure proceedings in accordance with the guidelines set forth
by
Xxxxxx Xxx or Xxxxxxx Mac. In such event, the Servicer shall from its own funds
make all necessary and proper Servicing Advances.
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Subsection
11.03 Collection
of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Servicer will proceed diligently, in
accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable. Further, the Servicer
will in accordance with Accepted Servicing Procedures ascertain and estimate
taxes, assessments, fire and hazard insurance premiums, and all other charges
that, as provided in any Mortgage,
will become due and payable to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Subsection
11.04 Establishment
of Custodial Account; Deposits in Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts
(collectively, the “Custodial
Account”),
titled “American Home Mortgage Servicing, Inc. as Servicer, in trust for Xxxxxxx
Sachs Mortgage Company as Purchaser of Mortgage Loans and various Mortgagors.”
Such Custodial Account shall be established with a commercial bank, a savings
bank or a savings
and loan association (which may be a depository affiliate of the Servicer)
which
meets the guidelines set forth by Xxxxxx Mae or Xxxxxxx Mac as an eligible
depository institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer. The
creation of any Custodial Account shall be evidenced by (i) a certification
in the form of Exhibit 4 hereto, in the case of an account established with
a depository affiliate of the Servicer, or (ii) a letter agreement in the
form of Exhibit 5 hereto, in the case of an account held by a depository
other than an affiliate of the Servicer. In either case, a copy of such
certification or letter agreement shall be furnished to the Purchaser upon
request.
The
Servicer shall deposit in the Custodial Account within two (2) Business days
following receipt thereof, and retain therein the following payments and
collections received or made by it subsequent to the related Cut-off Date (other
than in respect of principal and interest on the Mortgage Loans due on or before
the related Cut-off Date):
(a) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(b) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(c) all
Liquidation Proceeds;
(d) all
proceeds received by the Servicer under any title insurance policy, hazard
insurance policy, or other insurance policy other than proceeds to be held
in
the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Accepted Servicing
Procedures;
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(e) all
awards or settlements in respect of condemnation proceedings or eminent domain
affecting any Mortgaged Property which are not released to the Mortgagor in
accordance with Accepted Servicing Procedures;
(f) any
amount required to be deposited in the Custodial Account pursuant to
Subsections 11.14,
11.16
and
11.18;
(g) any
amount required to be deposited by the Servicer in connection with any REO
Property pursuant to Subsection 11.12;
(h) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Subsection 7.03,
and all
amounts required to be deposited by the Servicer in connection with shortfalls
in principal amount of Qualified Substitute Mortgage Loans pursuant to
Subsection 7.03;
and
(i) with
respect to each Principal Prepayment, an amount (to be paid by the Servicer
out
of its own 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 for the month of prepayment
at
the applicable Mortgage Loan Remittance Rate; provided,
however,
that
the Servicer’s aggregate obligations under this paragraph for any month
shall be limited to the total amount of Servicing Fees actually received with
respect to the Mortgage Loans by the Servicer during such month.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, assumption fees
and
other ancillary fees need not be deposited by the Servicer in the Custodial
Account.
The
Servicer may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Servicer for the benefit of the Purchaser, which
shall mature not later than the Business Day next preceding the Remittance
Date
next following the date of such investment (except that (A) any investment
in the institution with which the Custodial Account is maintained may mature
on
such Remittance Date and (B) any other investment may mature on such
Remittance Date if the Servicer shall advance funds on such Remittance Date,
pending receipt thereof to the extent necessary to make distributions to the
Owner) and shall not be sold or disposed of prior to maturity. Notwithstanding
anything to the contrary herein and above, all income and gain realized from
any
such investment shall be for the benefit of the Servicer and shall be subject
to
withdrawal by the Servicer. The amount of any losses incurred in respect of
any
such investments shall be deposited in the Custodial Account by the Servicer
out
of its own funds immediately as realized.
Subsection
11.05 Withdrawals
From the Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(a) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Subsection 11.14;
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(b) to
reimburse itself for P&I Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (b) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and such other amounts as may be collected
by
the Servicer from the Mortgagor or otherwise relating to the Mortgage Loan,
it
being understood that, in the case of any such reimbursement, the Servicer’s
right thereto shall be prior to the rights of the Purchaser, except that, where
the Seller is required to repurchase a Mortgage Loan, pursuant to Subsection 7.03,
the
Servicer’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to Subsection 7.03,
and all
other amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
(c) to
reimburse itself for any unpaid Servicing Fees and for unreimbursed Servicing
Advances, the Servicer’s right to reimburse itself pursuant to this
subclause (c) with respect to any Mortgage Loan being limited to
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Servicer’s right
thereto shall be prior to the rights of the Purchaser unless the Seller is
required to repurchase a Mortgage Loan pursuant to Subsection 7.03,
in
which case the Servicer’s right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price pursuant to Subsection 7.03
and all
other amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
(d) to
reimburse itself for unreimbursed Servicing Advances and for xxxxxxxxxxxx
X&X Advances, in accordance with Subsection 11.16,
to the
extent that such amounts are nonrecoverable by the Servicer pursuant to
subclause (b) or (c) above, provided that the Mortgage Loan for which such
advances were made is not required to be repurchased by the Seller pursuant
to
Subsection 7.03;
(e) to
reimburse itself for expenses incurred by and reimbursable to it pursuant to
Subsection 12.01;
(f) to
withdraw amounts to make P&I Advances in accordance with Subsection 11.16;
(g) to
pay to
itself any interest earned or any investment earnings on funds deposited in
the
Custodial Account;
(h) to
withdraw any amounts inadvertently deposited in the Custodial Account;
and
(i) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Subsection
11.06 Establishment
of Escrow Account; Deposits in Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts (collectively, the “Escrow
Account”),
titled “American Home Mortgage Servicing, Inc. as Servicer, in trust for Xxxxxxx
Sachs Mortgage Company as
Purchaser of Mortgage Loans and various Mortgagors.” The Escrow Account shall be
established with a commercial bank, a savings bank or a savings and loan
association (which may be a depository affiliate of Servicer), which meets
the
guidelines set forth by Xxxxxx Xxx or Xxxxxxx Mac as an eligible institution
for
escrow accounts. In any case, the Escrow Account shall be insured by the FDIC
in
a manner which shall provide maximum available insurance thereunder and which
may be drawn on by the Servicer. The creation of any Escrow Account shall be
evidenced by a certification in the form of Exhibit 6 hereto, in the case
of an account established with a depository affiliate of the Servicer, or by
a
letter agreement in the form of Exhibit 7 hereto, in the case
of
an account held by
a
depository. In either case, a copy of such certification or letter agreement
shall be furnished to the Purchaser upon request.
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The
Servicer shall deposit in the Escrow Account on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (b) all amounts representing
proceeds of any hazard insurance policy which are to be applied to the
restoration or repair of any Mortgaged Property. The Servicer shall make
withdrawals therefrom only in accordance with Subsection 11.07.
As part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in the Escrow Account, to the extent required by law.
Subsection
11.07 Withdrawals
From Escrow Account.
Withdrawals from the Escrow Account shall be made by the Servicer only
(a) to effect timely payments of ground rents, taxes, assessments, fire and
hazard insurance premiums or other items constituting Escrow Payments for the
related Mortgage, (b) to reimburse the Servicer for any Servicing Advance
made by Servicer pursuant to Subsection 11.08 with respect to a related
Mortgage Loan, (c) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage Loan,
(d) for transfer to the Custodial Account upon default of a Mortgagor or in
accordance with the terms of the related Mortgage Loan and if permitted by
applicable law, (e) for application to restore
or repair of the Mortgaged Property, (f) to pay to the Mortgagor, to the
extent required by law, any interest paid on the funds deposited in the Escrow
Account, (g) to pay to itself any interest earned on funds deposited in the
Escrow Account (and not required to be paid to the Mortgagor),
(h) to the extent permitted under the terms of the related Mortgage Note
and applicable law, to pay late fees with respect to any Monthly Payment which
is received after the applicable grace period, (i) to withdraw suspense
payments that are deposited into the Escrow Account, (j) to withdraw any
amounts inadvertently deposited in the Escrow Account or (k) to clear and
terminate the Escrow Account upon the termination of this
Agreement.
Subsection
11.08 Payment
of Taxes, Insurance and Other Charges; Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of
the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Servicer in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. If a Mortgage does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor. The Servicer assumes full responsibility for the timely payment
of
all such bills and shall effect timely payments of all such bills irrespective
of each Mortgagor’s faithful performance in the payment of same or the making of
the Escrow Payments and shall make Servicing Advances to effect such payments,
subject to its ability to recover such Servicing Advances pursuant to
Subsection 11.07(b);
provided, that with respect to each Mortgage Loan that does not provide for
Escrow Payments, the Servicer will not be required to make advances to effect
such payments until such time as the Servicer, or its tax service provider,
has
received a notice that such payment is delinquent. With respect to each Mortgage
Loan, on or before January 31st
of each
year during the term of this Agreement, beginning January 31, 2006, the
Servicer shall ensure that all taxes due during the prior calendar year have
been paid on the related Mortgaged Property.
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With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as an
LPMI Loan, the Servicer shall maintain in full force and effect any LPMI Policy,
and from time to time, withdraw the premium with respect to such Mortgage Loans
from the Custodial Account in order to pay the premium thereon on a timely
basis. In the event that the interest payments made with respect to the Mortgage
Loan are less than the premium with respect to the LPMI Policy, the Servicer
shall advance from its own funds the amount of any such shortfall in the LPMI
Policy premiums, in payment of such premium. Any such advance shall be a
Servicing Advance subject to reimbursement. In the event that such LPMI Policy
shall be terminated, the Servicer shall obtain from another insurer acceptable
under the Underwriting Guidelines, a comparable replacement policy, with a
total
coverage equal to the remaining coverage of such terminated LPMI Policy, at
substantially the same fee level. If the insurer shall cease to be an insurer
acceptable under the Underwriting Guidelines, the Servicer shall determine
whether recoveries under the LPMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Servicer
shall in no event have any responsibility or liability for any failure to
recover under the LPMI Policy for such reason. If the Servicer determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another insurer acceptable under the Underwriting
Guidelines a replacement insurance policy. The Servicer shall not take any
action which would result in noncoverage under any applicable LPMI Policy of
any
loss which, but for the actions of the Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into, the Servicer shall promptly notify the insurer
under
the related LPMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such LPMI Policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under such LPMI Policy. If such LPMI Policy is terminated as a result
of such assumption or substitution of liability, the Servicer shall obtain
a
replacement LPMI Policy as provided above.
Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional LPMI
Policy on any Mortgage Loan which already has an LPMI Policy in place, or (ii)
obtain a LPMI Policy for any Mortgage Loan which does not already have a LPMI
Policy in place. In any event, the Servicer agrees to administer such LPMI
Policies in accordance with the Agreement or any Reconstitution
Agreement.
-51-
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy and LPMI Policy and, in this regard, to take such action as
shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Servicer
under any PMI Policy shall be deposited in the Escrow Account.
Subsection
11.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution. Such transfer shall be made only upon obtaining the
prior written consent of the Purchaser; such consent not to be unreasonably
withheld.
Subsection
11.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located that conforms to the requirements of Xxxxxx Xxx or Xxxxxxx
Mac. If the Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood hazards
(and
such flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of Xxxxxx Mae
or
Xxxxxxx Mac. The Servicer shall also maintain on REO Property fire and hazard
insurance with extended coverage in an amount which meets the requirements
of
Xxxxxx Mae or Xxxxxxx Mac. Any amounts
collected by the Servicer under any such policies (other than amounts to be
deposited in the Escrow Account and applied to the restoration or repair of
the
property subject to the related Mortgage or property acquired in liquidation
of
the Mortgage Loan, or to be released to the Mortgagor
in accordance with Accepted Servicing Procedures) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Subsection 11.05. It
is understood and agreed that no earthquake or other additional insurance need
be required by the Servicer of any Mortgagor or maintained on REO Property
other
than pursuant to such applicable laws and regulations as shall at any time
be in
force and as shall require such additional insurance. All policies required
hereunder shall be endorsed with standard mortgagee clauses with loss payable
to
Servicer, and shall provide for at least thirty (30) days prior
written notice of any cancellation, reduction in amount or material change
in
coverage to the Servicer. The Servicer shall not interfere with the Mortgagor’s
freedom of choice in selecting either its insurance carrier or agent;
provided,
however,
that
the Servicer shall not accept any such insurance policies that do not conform
to
the requirements of Xxxxxx Mae or Xxxxxxx Mac.
Subsection
11.11 Fidelity
Bond; Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket Fidelity Bond and an
errors and omissions insurance policy, with broad coverage 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. These
policies shall insure the Servicer against losses resulting from dishonest
or
fraudulent acts committed by the Servicer’s personnel, any employees of outside
firms that provide data processing services for the Servicer, and temporary
contract employees or student interns.
The Fidelity Bond shall also protect and insure the Servicer 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 Subsection 11.11
requiring such Fidelity Bond and errors and omissions insurance shall diminish
or relieve the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by Xxxxxx
Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx
Xxxxxxx’ & Servicers’ Guide, as amended or restated from time to time,
or in an amount as may be permitted to the Servicer by express waiver of Xxxxxx
Mae or Xxxxxxx Mac.
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Subsection
11.12 Title,
Management and Disposition of REO Property.
If
title to the 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
Servicer or its nominee, in either case as nominee, for the benefit of the
Purchaser of record on the date of acquisition of title (the “Owner”).
If
the Servicer is not authorized or permitted to hold title to real property
in
the state where the REO Property is located, or would be adversely affected
under the “doing business” or tax laws of such state by so holding title, the
deed or certificate of sale shall be taken in the name of such Person or Persons
as shall be consistent with an opinion of counsel obtained by the Servicer,
at
the expense of the Purchaser, from an 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 Owner shall acknowledge in writing that such title is
being
held as nominee for the Owner.
The
Servicer shall cause to be deposited on a daily basis in the Custodial Account
all revenues received with respect to the conservation and disposition of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Subsection 11.10
and the
fees of any managing agent acting on behalf of the Servicer. Any disbursement
in
excess of $5,000 shall be made only with the written approval of the Purchaser.
The Servicer shall make distributions as required 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 above and of
any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
The
disposition of REO Property shall be carried out by the Servicer in accordance
with the provisions of this Agreement and shall be made at such price, and
upon
such terms and conditions, as the Servicer deems to be in the best interests
of
the Owner. Upon the request of the Owner, and at the Owner’s expense, the
Servicer shall cause an appraisal of the REO Property to be performed for the
Owner. The proceeds of sale of the REO Property shall be promptly deposited
in
the Custodial Account and, as soon as practical thereafter, the expenses of
such
sale shall be paid, the Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed advances
made pursuant to Subsection 11.16
and any
appraisal performed pursuant to this paragraph and the net cash proceeds of
such
sale remaining in the Custodial Account shall be distributed to the
Purchaser.
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The
Servicer shall either itself or through an agent selected by the Servicer,
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 Servicer shall attempt to sell the same
(and
may temporarily rent the same) on such terms and conditions as the Servicer
deems to be in the best interest of the Owner.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO Property are held, the Servicer shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the
Code.
Upon
request, with respect to any REO Property, the Servicer shall furnish to the
Owner a statement covering the Servicer’s efforts in connection with the sale of
that REO Property and any rental of the REO Property incidental to the sale
thereof for the previous month (together with an operating
statement).
Subsection
11.13 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled to
retain the Servicing Fee from interest payments on the Mortgage Loans.
Additional servicing compensation in the form of assumption fees, late payment
charges and other ancillary income shall be retained by the Servicer to the
extent not required to be deposited in the Custodial Account. The Servicer
shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided for herein.
Subsection
11.14 Distributions.
On each
Remittance Date the Servicer shall remit by wire transfer of immediately
available funds to the account designated in writing by the Purchaser of record
on the preceding Record Date (a) all Monthly Payments due in the Due Period
relating to such Remittance Date and received by the Servicer prior to the
related Determination Date, plus (b) all amounts, if any, which the
Servicer is obligated to distribute pursuant to Subsection 11.16, plus
(c) any amounts attributable to Principal Prepayments received in the
calendar month preceding the month in which the Remittance Date occurs, together
with any additional interest required to be deposited in the Custodial Account
in connection with such Principal Prepayments in accordance with
Subsection 11.04(i), minus (d) all amounts that may be withdrawn from
the Custodial Account pursuant to Subsections 11.05(b) through
(e).
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Servicer shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percent (3%), but in no event greater than
the maximum amount permitted by applicable law. Such interest shall be paid
by
the Servicer to the Purchaser on the date such late payment is made and shall
cover the period commencing with the Business Day on which such payment was
due
and ending with the Business Day immediately preceding the Business Day on
which
such payment is made, both inclusive. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any
Event of Default by the Servicer.
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Subsection
11.15 Statements
to the Purchaser.
Not
later than the 12th
calendar
day of each month (or, if such 12th
day is
not a Business Day, the following Business Day), the Servicer shall forward
to
the Purchaser in hard copy and electronic format mutually acceptable to the
Purchaser and the Seller, a statement containing the information fields set
forth on Exhibit 9 and certified by a Servicing Officer. Such
statement shall also include (i) information regarding delinquencies on
Mortgage
Loans, indicating the number and aggregate principal amount of Mortgage Loans
which are delinquent (including number of days delinquent through liquidation
of
the related REO Property) and the book value of any
REO
Property and (ii) Static Pool Information regarding the Mortgage Loans. The
Servicer shall submit to the Purchaser monthly a liquidation report with respect
to each Mortgaged Property sold in a foreclosure sale as of the related Record
Date and not previously reported. Such liquidation report shall be incorporated
into the remittance report delivered to Purchaser.
The
Servicer shall furnish to the Purchaser an individual loan accounting report
(which may be the same report as set forth in the first paragraph hereof) in
hard copy and electronic format mutually acceptable to the Purchaser and the
Seller, as of the last Business Day of each month, in the Purchaser’s assigned
loan number order (provided that such loan numbers previously have been provided
in writing by the Purchaser to the Servicer) to document Mortgage Loan payment
activity on an individual Mortgage Loan basis. With respect to each month,
the
corresponding individual loan accounting report shall be received by the
Purchaser no later than the fifth Business Day of the following month, which
report shall contain the following:
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(i)
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with
respect to each Monthly Payment, the amount of such remittance allocable
to principal (including a separate breakdown of any Principal Prepayment,
including the date of such prepayment, along with a detailed report
of
interest on principal prepayment amounts remitted in accordance with
Subsection 11.14);
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(ii)
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with
respect to each Monthly Payment, the amount of such remittance allocable
to interest; and
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(iii)
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the
next actual due date for each Mortgage
Loan.
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In
addition, within a reasonable period of time after the end of each calendar
year, the Servicer will furnish a report to each Person that was a Purchaser
at
any time during such calendar year. Such report shall state the aggregate of
amounts distributed to the Purchaser for such calendar year. Such obligation
of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to the Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the Servicer shall
provide the Purchaser with such information concerning the Mortgage Loans as
is
necessary for such Purchaser to prepare federal income tax returns as the
Purchaser may reasonably request from time to time.
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Subsection
11.16 Advances
by the Servicer.
On the
Business Day immediately preceding each Remittance Date, the Servicer shall
either (a) deposit in the Custodial Account from its own funds an amount
equal to the aggregate amount of 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 (each such advance, a “P&I
Advance”),
(b) cause to be made an appropriate entry in the records of the Custodial
Account that
amounts held for future distribution have been, as permitted by this
Subsection 11.16, used by
the
Servicer in discharge of any such P&I Advance or (c) make P&I
Advances in the form of any combination of (a) or (b) aggregating the
total amount of P&I Advances to be made. Any amounts held for future
distribution and so used shall be replaced by the Servicer by deposit in the
Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than payments to the
Purchaser required to be made on such
Remittance Date. The Servicer’s obligation to make P&I Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of a Mortgage Loan, or through the last Remittance Date prior
to
the Remittance Date for the distribution of all other payments or recoveries
(including proceeds under any title, hazard or other insurance policy, or
condemnation awards) with respect to a Mortgage Loan; provided,
however,
that
such obligation shall cease (i) for any Mortgage Loan and on any Remittance
Date that the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) occurs
with
respect to such Mortgage Loan or (ii) if the Servicer, in its good faith
judgment, determines that P&I Advances would not be recoverable pursuant to
Subsection 11.05(d). The determination by the Servicer that a P&I
Advance, if made, would be nonrecoverable, shall be evidenced by an Officer’s
Certificate of the Servicer, delivered to the Purchaser, which details the
reasons for such determination.
Subsection
11.17 Assumption
Agreements.
The
Servicer will use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note, provided that the Servicer shall
permit such assumption if so required in accordance with the terms of the
Mortgage or the Mortgage Note. When the Mortgaged Property has been conveyed
by
the Mortgagor, the Servicer will, 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,
the
Servicer will not exercise such rights if prohibited by law from doing so.
In
connection with any such assumption, the outstanding principal amount, the
Monthly Payment or the Mortgage Interest Rate of the related Mortgage Note
shall
not be changed, and the term of the Mortgage Loan will not be increased or
decreased. If an assumption is allowed pursuant to this Subsection 11.17,
the Servicer is
authorized to enter into 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.
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Subsection
11.18 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer of
a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will obtain
the portion of the Mortgage File that is in the possession of the Purchaser
or
its designee, prepare and process any required satisfaction or release of the
Mortgage and notify the Purchaser in accordance with the provisions of this
Agreement. The Purchaser agrees to deliver to the Servicer the original Mortgage
Note for any Mortgage Loan not later than three (3) Business Days following
its receipt of a notice from the Servicer that such a payment in full has been
received or that a notification has been received that such a payment in full
shall be made. Such Mortgage Note shall be held by the Servicer, in trust,
for
the purpose of canceling such Mortgage Note and delivering the cancelled
Mortgage Note to the Mortgagor in a timely manner as and to the extent provided
under applicable state law. If the Mortgage has been recorded in the name of
MERS
or
its designee, the Servicer shall take all necessary action to effect the release
of the Mortgage Loan on the records of MERS.
If
the
Servicer grants a satisfaction or release of a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should the
Servicer otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Servicer, upon written demand of the Purchaser, shall remit
to
the Purchaser the Stated Principal Balance of the related Mortgage Loan by
deposit thereof in the Custodial Account. The Fidelity Bond shall insure the
Servicer against any loss it may sustain with respect to any Mortgage Loan
not
satisfied in accordance with the procedures set forth herein.
Subsection
11.19 Annual
Statement as to Compliance.
The
Servicer shall deliver to the Purchaser on or before March 10th
of each
year beginning March 10, 2006, an Officer’s Certificate stating that
(1) a
review of the activities of the Servicer during the preceding calendar year
and
if performance under this Agreement has been made under such officer’s
supervision, and (2) to
the best of such officer’s knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year, or,
if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof and
the action being taken by the Servicer to cure such default.
Subsection
11.20 Annual
Independent Public Accountants’ Servicing Report or Attestation. On
or
before March 10th
of each
year beginning March 10, 2006, the Servicer, at its expense, shall cause a
firm
of independent public accountants which is a member of the American Institute
of
Certified Public Accountants to furnish a statement to the Purchaser to the
effect that such firm has, with respect to the Servicer’s overall servicing
operations, examined such operations in accordance with the requirements of
the
Uniform Single Attestation Program for Mortgage Bankers, stating such firm’s
conclusions relating thereto.
Subsection
11.21 Servicer
Shall Provide Access and Information as Reasonably Required.
The
Servicer shall provide to the Purchaser, and for any Purchaser insured by FDIC
or NAIC, the supervisory agents and examiners of FDIC and OTS or NAIC, access
to
any documentation regarding the Mortgage Loans which may be required by
applicable regulations. Such access shall be afforded without charge, but only
upon reasonable request, during normal business hours and at the offices of
the
Servicer.
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In
addition, the Servicer shall furnish upon request by the Purchaser, during
the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable and
appropriate with respect to the purposes of this Agreement and applicable
regulations. All such reports or information shall be provided by and in
accordance with all reasonable instructions and directions the Purchaser may
require. The Servicer agrees to execute and deliver all such instruments and
take all such action as the Purchaser, from time to time, may reasonably request
in order to effectuate the purposes and to carry out the terms of this
Agreement.
Subsection
11.22 Transfer
of Servicing.
On the
related Transfer Date, if any, the Purchaser, or its designee, shall assume
all
servicing responsibilities related to, and the Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such Transfer
Date. On or prior to the related Transfer Date, the Seller shall, at its sole
cost and expense, take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice
to Mortgagors.
The
Seller shall mail to the Mortgagor of each related Mortgage Loan a letter
advising such Mortgagor of the transfer of the servicing of the related Mortgage
Loan to the Purchaser, or its designee, in accordance with the Xxxxxxxx Xxxxxxxx
National Affordable Housing Act of 1990, as amended; provided,
however,
the
content and format of the letter shall have the prior approval of the Purchaser.
The Seller shall provide the Purchaser with copies of all such related notices
no later than the related Transfer Date.
(b) Notice
to Taxing Authorities and Insurance Companies.
The
Seller shall transmit to the applicable taxing authorities and insurance
companies (including primary mortgage insurance policy insurers, if applicable)
and/or agents, notification of the transfer of the servicing to the Purchaser,
or its designee, and instructions to deliver all notices, tax bills and
insurance statements, as the case may be, to the Purchaser from and after the
related Transfer Date. The Seller shall provide the Purchaser with copies of
all
such notices no later than the related Transfer Date.
(c) Delivery
of Servicing Records.
The
Seller shall forward to the Purchaser, or its designee, all servicing records
and the Servicing File in the Seller’s possession relating to each related
Mortgage Loan.
(d) Escrow
Payments.
The
Seller shall provide the Purchaser, or its designee, with immediately available
funds by wire transfer in the amount of the net Escrow Payments and suspense
balances and all loss draft balances associated with the related Mortgage Loans.
The Seller shall provide the Purchaser with an accounting statement, in
electronic format acceptable to the Purchaser in its sole discretion, of Escrow
Payments and suspense balances and loss draft balances sufficient to enable
the
Purchaser to reconcile the amount of such payment with the accounts of the
Mortgage Loans. Additionally, the Seller shall wire transfer to the Purchaser
the amount of any agency, trustee or prepaid Mortgage Loan payments and all
other similar amounts held by the Seller.
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(e) Payoffs
and Assumptions.
The
Seller shall provide to the Purchaser, or its designee, copies of all assumption
and payoff statements generated by the Seller on the related Mortgage Loans
from
the related Cut-off Date to the related Transfer Date.
(f) Mortgage
Payments Received Prior to Transfer Date.
Prior
to the related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage
Payments Received after Transfer Date.
The
amount of any related Monthly Payments received by the Seller after the related
Transfer Date shall be forwarded to the Purchaser by overnight mail on the
date
of receipt or by wire transfer on the next succeeding Business Day. The Seller
shall notify the Purchaser of the particulars of the payment, which notification
requirement shall be satisfied if the Seller forwards with its payment
sufficient information to permit appropriate processing of the payment by the
Purchaser. The Seller shall assume full responsibility for the necessary and
appropriate legal application of such Monthly Payments received by the Seller
after the related Transfer Date with respect to related Mortgage Loans then
in
foreclosure or bankruptcy; provided, for purposes of this Agreement, necessary
and appropriate legal application of such Monthly Payments shall include, but
not be limited to, endorsement of a Monthly Payment to the Purchaser with the
particulars of the payment such as the account number, dollar amount, date
received and any special Mortgagor application instructions and the Seller
shall
comply with the foregoing requirements with respect to all Monthly Payments
received by the Seller after the related Transfer Date.
(h) Misapplied
Payments.
Misapplied payments shall be processed as follows:
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(i)
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All
parties shall cooperate in correcting misapplication
errors;
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(ii)
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The
party receiving notice of a misapplied payment occurring prior to
the
related Transfer Date and discovered after such Transfer Date shall
immediately notify the other party;
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(iii)
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If
a misapplied payment which occurred prior to the related Transfer
Date
cannot be identified and said misapplied payment has resulted in
a
shortage in a Custodial Account or Escrow Account, the Seller shall
be
liable for the amount of such shortage. The Seller shall reimburse
the
Purchaser for the amount of such shortage within thirty (30) days
after receipt of written demand therefor from the
Purchaser;
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(iv)
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If
a misapplied payment which occurred prior to the related Transfer
Date has
created an improper Purchase Price as the result of an inaccurate
outstanding principal balance, a check shall be issued to the party
shorted by the improper payment application within five (5) Business
Days after notice thereof by the other party;
and
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(v)
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Any
check issued under the provisions of this Section 11.22(h)
shall be accompanied by a statement indicating the corresponding
Seller
and/or the Purchaser Mortgage Loan identification number and an
explanation of the allocation of any such
payments.
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(i) Books
and Records.
On the
related Transfer Date, the books, records and accounts of the Seller with
respect to the related Mortgage Loans shall be in accordance with all applicable
Purchaser requirements.
(j) Reconciliation.
The
Seller shall, on or before the related Transfer Date, reconcile principal
balances and make any monetary adjustments required by the Purchaser. Any such
monetary adjustments will be transferred between the Seller and the Purchaser
as
appropriate.
(k) IRS
Forms.
The
Seller shall file or shall cause to be filed all IRS forms 1099, 1099A, 1098
or
1041 and K-1 which are required to be filed on or before the related Transfer
Date in relation to the servicing and ownership of the related Mortgage Loans.
The Seller shall provide copies of such forms to the Purchaser upon request
and
shall reimburse the Purchaser for any costs or penalties incurred by the
Purchaser due to the Seller’s failure to comply with this
paragraph.
(l) Mortgage
Loans in Foreclosure.
The
servicing with respect to Mortgage Loans in foreclosure on or before the related
Transfer Date shall not be transferred from the Servicer to the Purchaser or
its
designee, as the case may be, and such Mortgage Loans shall continue to be
serviced by the Servicer pursuant to the terms of this Agreement. However,
if
the Purchaser so elects, the Purchaser may waive the provisions of this
paragraph and accept transfer of servicing of such Mortgage Loans and all
amounts received by the Servicer thereunder.
(m) Servicing
Advances.
Notwithstanding the fact that the related Transfer Date has occurred, the
Servicer shall not be reimbursed for any Servicing Advances in relation to
any
Mortgage Loan until the Servicer or the successor servicer receives a Monthly
Payment or Liquidation Proceeds in relation to such Mortgage Loan. At such
time,
the Servicer shall be entitled to be reimbursed for all unreimbursed Servicing
Advances with respect to such Mortgage Loan on a first priority basis from
the
Monthly Payment or Liquidation Proceeds received with respect to such Mortgage
Loan. This clause shall
survive each Transfer Date.
Subsection
11.23 Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Seller shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
Subsection
11.24 Notification
of Adjustments.
With
respect to each ARM Mortgage Loan, Seller shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date and shall adjust the Monthly
Payment on the related Payment Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
If,
pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate because the original index is no longer
available, the same index will be used with respect to each Mortgage Note which
requires a new index to be selected, provided that such selection does not
conflict with the terms of the related Mortgage Note. Seller 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 and the Monthly Payment adjustments. Seller shall promptly, upon written
request therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by Seller or the Purchaser that
Seller has failed to adjust a Mortgage Interest Rate or a Monthly Payment
pursuant to the terms of the related Mortgage Note and Mortgage, Seller shall
immediately deposit in the Custodial Account, from its own funds, the amount
of
any interest loss caused the Purchaser thereby without reimbursement
therefor.
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Section
12. The
Servicer.
Subsection
12.01 Indemnification;
Third Party Claims.
The
Servicer agrees to indemnify and hold the Purchaser and any Successor Servicer
and their respective present and former directors, officers, employees and
agents harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including, without limitation, any
reasonable legal fees and expenses, judgments or expenses relating to such
liability, claim, loss or damage) and related costs, judgments, and any other
costs, fees and expenses that such parties may sustain in any way related to
the
Servicer’s failure:
(a) to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement or in
the
related Purchase Price and Terms Agreement; or
(b) to
comply
with all applicable requirements contained in this Agreement or the related
Purchase Price and Terms Agreement with respect to the servicing of the Mortgage
Loan and the transfer of Servicing Rights.
The
Servicer immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement.
For
purposes of this Section, “Purchaser” shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
“Purchasers” under this Agreement and “Successor Servicer” shall mean any Person
designated as the Successor Servicer pursuant to this Agreement and any and
all
Persons who previously were “Successor Servicers” pursuant to this Agreement.
If
any
action is commenced for which indemnification may be available under this
Subsection 12.01
of which
an indemnified party has notice, promptly after receipt by such indemnified
party under this Subsection 12.01
of
notice of the commencement of such action, such indemnified party will, if
a
claim in respect thereof is to be made against the indemnifying party under
this
Subsection 12.01,
notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party
from
any liability which it may have to any indemnified party under this Subsection 12.01,
except
to the extent that it has been prejudiced in any material respect, or from
any
liability which it may have, otherwise than under this Subsection 12.01.
In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party.
-61-
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that in the reasonable judgment of such counsel it
is
necessary or appropriate for such indemnified party to employ separate counsel
due to actual or potential differing interests between the parties; or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party,
in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such action on behalf of such indemnified party, it being understood, however,
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified
parties.
Notwithstanding
anything to the contrary contained herein, in no event shall a termination
of
this Agreement or the Servicer hereunder terminate any indemnification
obligations of the Servicer under this Agreement, which obligations shall
survive any such termination.
Subsection
12.02 Merger
or Consolidation of the Seller and the Servicer.
Each of
the Seller and the Servicer will keep in full effect its existence, rights
and
franchises under the laws of its jurisdiction of incorporation or organization,
and will obtain and preserve its qualification to do business in each other
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of this Agreement, or any of the Mortgage Loans
and
to perform its duties under this Agreement.
Any
Person into which the Seller or the Servicer may be merged or consolidated,
or
any corporation resulting from any merger, conversion or consolidation to which
the Seller or the Servicer shall be a party, or any Person succeeding to the
business of the Seller or the Servicer, shall be the successor of the Seller
or
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, unless
otherwise consented to by the Purchaser, which consent shall not be unreasonably
withheld, and shall be qualified to service mortgage loans on behalf of Xxxxxx
Mae or Xxxxxxx Mac.
-62-
Subsection
12.03 Limitation
on Liability of the Servicer and Others.
The
duties and obligations of the Servicer shall be determined solely by the express
provisions of this Agreement, the Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Servicer. Neither the Servicer nor any of the directors,
officers, employees or agents of the Servicer shall be under any liability
to
the Purchaser for any action taken or for refraining from the taking of any
action in accordance with Accepted Servicing Procedures and otherwise in good
faith pursuant to this Agreement or for errors
in
judgment; provided,
however,
that
this provision shall not protect the Servicer against any liability resulting
from any breach of any representation or warranty made herein, or from
any
liability specifically imposed on the Servicer herein; and, provided,
further,
that
this provision shall not protect the Servicer against any liability that would
otherwise be imposed by reason of the willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard
of
the obligations or duties hereunder. The Servicer and any director,
officer, employee or agent of the Servicer may rely on any document of any
kind
which it in good faith reasonably believes to be genuine and to have been
adopted or signed by the proper
authorities respecting any matters arising hereunder. Subject to the terms
of
Subsection 12.01, the Servicer shall have no obligation to appear with
respect to, prosecute or defend any legal action which is not incidental to
the
Servicer’s duty to service the Mortgage Loans in accordance with this
Agreement.
Subsection
12.04 Seller
and Servicer Not to Resign.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, the Servicer acknowledges that the Purchaser has acted in reliance
upon the Servicer’s independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, neither Seller nor Servicer shall assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof to any third-party non-affiliate without the prior
written approval of the Purchaser, which consent shall be granted or withheld
in
the Purchaser’s sole discretion or upon the Servicer’s determination that the
Servicer’s duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the unilateral resignation of the Servicer shall
be evidenced by an Opinion
of Counsel to such effect delivered to the Purchaser, which Opinion of Counsel
shall be in form and substance reasonably acceptable to the Purchaser. No such
resignation or assignment shall become effective until a successor has assumed
the Servicer’s responsibilities and obligations hereunder in accordance with
Subsection 14.03.
Section
13. Default.
Subsection
13.01 Events
of Default.
In case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing:
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(a) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of two (2) Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser;
(b) failure
by the Servicer to duly observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement which failure continues unremedied for a period of
sixty (60) days (or, in the case of (i) the officer’s certificate
required under Subsection 11.19,
(ii) the annual independent public accountants’ servicing report required
under Subsection 11.20
or
(iii) the certification required under Section 15
in the
form of Exhibit 16,
five
(5) days) after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Purchaser;
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force, undischarged or unstayed for a period of
thirty (30) days;
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
relating to all or substantially all of the Servicer’s property; or
(e) the
Servicer shall admit in writing its inability to pay its debts as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Servicer, may, in addition
to whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, commence termination of all the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. Upon receipt by the Servicer of such
written notice from the Purchaser stating that it intends to terminate the
Servicer as a result of such Event of Default, all authority and power of the
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Subsection 14.03.
Upon
written request from the Purchaser, the Servicer shall, in accordance with
Subsection 11.22
prepare,
execute and deliver to a successor any and all documents and other instruments,
place in such successor’s possession all Mortgage Files and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including, but not limited to, the transfer and
endorsement or assignment of the Mortgage Loans and related documents to the
successor at the Servicer’s sole expense. The Servicer agrees to cooperate with
the Purchaser and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all amounts which shall
at the time be credited by the Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
-64-
Subsection
13.02 Waiver
of Defaults.
The
Purchaser may waive any default by the Servicer 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 thereto except to the extent expressly so waived.
Section
14. Termination.
Subsection
14.01 Termination.
The
respective obligations and responsibilities of the Servicer, as servicer, shall
terminate upon (a) the distribution to the Purchaser of the final payment
or liquidation with respect to the last Mortgage Loan (or advances of same
by
the Servicer); (b) the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure with respect to the last Mortgage
Loan and the remittance of all funds due hereunder or (c) by mutual consent
of the Servicer and the Purchaser in writing. Upon written request from the
Purchaser in connection with any such termination, the Servicer shall prepare,
execute and deliver, any and all documents and other instruments, place in
the
Purchaser’s possession all Mortgage Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete
the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Purchaser’s sole expense. The Servicer agrees to cooperate
with the Purchaser and such successor in effecting the termination of the
Servicer’s responsibilities and
rights hereunder as servicer, including, without limitation, the transfer to
such successor for administration
by it of all cash amounts which shall at the time be credited by the Servicer
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
Subsection
14.02 Termination
of the Servicer Without Cause.
Notwithstanding anything herein to the contrary, the Purchaser may terminate
the
obligations and responsibilities of the Servicer in its capacity as Servicer,
without cause, upon payment to the Servicer of a termination fee equal to the
fair market value of the servicing rights with respect to a pool of the
aggregate outstanding principal balance of the Mortgage Loans as of the date
of
such termination as mutually determined by the Servicer and the Purchaser in
good faith. The termination fee provided for in this Subsection 14.02 shall
be paid by the Purchaser on the applicable Transfer Date.
Subsection
14.03 Successors
to the Servicer.
Prior
to the termination of the Servicer’s responsibilities and duties under this
Agreement pursuant to Subsections 12.04, 13.01, 14.01 or 14.02, the
Purchaser shall, (a) succeed to and assume all of the Servicer’s
responsibilities, rights,
duties and obligations under this Agreement or (b) appoint a successor
which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities
of
the Servicer under this Agreement upon such termination. 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. If the Servicer’s duties, responsibilities and
liabilities under this Agreement shall be terminated pursuant to the
aforementioned Subsections, 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 Subsections shall not become effective until a successor
shall be appointed pursuant to this Subsection 14.03 and shall in no event
relieve the Seller of the representations and warranties made pursuant to
Subsections 7.01 and 7.02 and the remedies available to the Purchaser under
Subsection 7.03, it being understood and agreed that the provisions of such
Subsections 7.01 and 7.02 shall be applicable to the Seller notwithstanding
any such resignation or termination of the Servicer, or the termination of
this
Agreement.
-65-
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Servicer or this Agreement pursuant to Subsections 12.04,
13.01,
14.01
or
14.02
shall
not affect any claims that the Purchaser may have against the Servicer arising
prior to any such termination or resignation.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify by mail
the Purchaser of such appointment.
Section
15. Cooperation
of Seller with a Reconstitution.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution
Date”)
at the
Purchaser’s sole option, the Purchaser may effect a sale (each, a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
(a) Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each, a “Xxxxxx
Mae Transfer”);
or
(b) Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
(c) one
or
more third party purchasers in one or more Whole Loan Transfers; or
(d) one
or
more trusts or other entities to be formed as part of one or more Securitization
Transactions.
The
Seller agrees to execute in connection with any Agency Transfer, any and all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may be) and any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties, which will provide duties no
more onerous than those requested of the Servicer under this Agreement, or
an
Assignment and Recognition Agreement substantially in the form attached hereto
as Exhibit 15
(collectively, the agreements referred to herein are designated, the
“Reconstitution
Agreements”),
together with an opinion of counsel with respect to such Reconstitution
Agreements.
-66-
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) if such
Reconstitution occurs within two (2) years of the related Closing Date with
respect to any Mortgage Loan Package, to restate the representations and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution or make the representations and warranties
set forth in the related selling/servicing guide of the servicer or issuer,
as
the case may be, or such representations or warranties as may be required by
any
rating agency or prospective purchaser of the related securities or such
Mortgage Loans, in connection with such Reconstitution. The Seller shall provide
to such servicer or issuer, as the case may be, and any other participants
or
purchasers in such Reconstitution: (i) any and all information and
appropriate verification of information which may be reasonably available to
the
Seller or its affiliates, whether through letters of its auditors and counsel
or
otherwise, as the Purchaser or any such other participant shall request;
(ii) such additional representations, warranties, covenants, opinions of
counsel, letters from auditors, and certificates of public officials or officers
of the Seller or the Servicer as are reasonably believed necessary by the
Purchaser or any such other participant (including, without limitation, such
revisions to this Agreement relating to the servicing of REO Property and the
provision of remittance reports as the Purchaser may reasonably believe to
be
necessary to enable such servicer to fulfill its master servicing obligations)
and the out-of-pocket costs and expenses thereof shall be reimbursed by the
Purchaser in an amount up to $4,000 and (iii) to execute, deliver and
satisfy all conditions set forth in an Indemnification and Contribution
Agreement in substantially the form attached hereto as Exhibit 3.
Moreover, the Seller agrees to cooperate with all reasonable requests made
by
the Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each Affiliate of the Purchaser participating in the
Reconstitution, each Person who controls the Purchaser or such Affiliate and
each underwriter and initial purchaser participating in the Reconstitution,
and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, reasonable legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses (“Losses”)
that
each of them may sustain in any way related to any information provided by
or on
behalf of the Seller regarding the Seller or the Servicer, the Seller’s or the
Servicer’s servicing practices or the performance of the Mortgage Loans or the
Underwriting Guidelines set forth in any offering document prepared in
connection with any Reconstitution, provided that such Losses arise out of
or
are based upon any untrue statement of material fact contained in the offering
document, or the omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, to the extent that
such untrue statement or omission relates solely to the information provided
by
or on behalf of the Seller. For purposes of the previous sentence, “Purchaser”
shall mean the Person then acting as the Purchaser under this Agreement and
any
and all Persons who previously were “Purchasers” under this Agreement.
-67-
With
respect to any Mortgage Loans sold in a Securitization Transaction in which
the
Servicer is the servicer, the Servicer agrees that on or before March 15th
of each year beginning March 15, 2006, the Servicer shall deliver to the
depositor, the master servicer (if any) and the trustee for the securitization
trust in the Securitization Transaction, and their officers, directors and
affiliates, a certification in the form attached as Exhibit 16
hereto,
executed by the senior officer in charge of servicing at the Servicer for use
in
connection with any Form 10-K to be filed with the Securities and Exchange
Commission with respect to the securitization trust. The Servicer shall
indemnify and hold harmless the depositor, the master servicer (if any) and
the
trustee, and their respective officers, directors and Affiliates, from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses arising
out
of or based upon any breach of the Servicer’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith
or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Servicer agrees
that it shall contribute to the amount paid or payable by such indemnified
party
as a result of the losses, claims, damages or liabilities of such indemnified
party in such proportion as is appropriate to reflect the relative fault of
such
indemnified party, on the one hand, and the Servicer, on the other, in
connection with a breach of the Servicer’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith
or willful misconduct of the Servicer in connection therewith.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and shall continue to be serviced in accordance with
the terms of this Agreement, and with respect thereto this Agreement shall
remain in full force and effect.
Section
16. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
given via email, facsimile transmission or registered or certified mail to
the
person at the address set forth below:
|
(a)
|
if
to the Purchaser:
|
Xxxxxxx
Sachs Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
-68-
With
a
copy to:
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
(b)
|
if
to the Servicer:
|
American
Home
Mortgage
Servicing, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxxx, Executive Vice President
E-mail:
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx
With
a
copy to:
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxx, General Counsel
Facsimile:
(000) 000-0000
E-mail:
xxxx.xxxx@xxxxxxxxxx.xxx
|
(c)
|
if
to the Seller:
|
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Xx.
Facsimile:
(000) 000-0000
E-mail:
xxx.xxxxxxx@xxxxxxxxxx.xxx
With
a
copy to:
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxx, General Counsel
Facsimile:
(000) 000-0000
E-mail:
xxxx.xxxx@xxxxxxxxxx.xxx
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
-69-
Section
17. Severability
Clause.
Any
part, provision representation or warranty of this Agreement which is prohibited
or unenforceable or is held to be void or unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
Section
18. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Servicer shall
be rendered as an independent contractor and not as agent for the
Purchaser.
Section
19. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
Section
20. Governing
Law Jurisdiction; Consent to Service of Process.
THIS
AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED COUNTERPART THEREOF
IS
RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND SHALL BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CHOICE
OF
LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY
(I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT;
(III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT
ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
-70-
Section
21. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the related Closing Date of the Mortgage Loans described
on
the related Mortgage Loan Schedule is mandatory from and after the date of
the
execution of the related Purchase Price and Terms Agreement, 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 (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. The Seller hereby grants to
the
Purchaser a lien on and a continuing security interest in each Mortgage Loan
and
each document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser’s (i) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the
terms
of this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (ii) obligation to pay the
Purchase Price for the Mortgage Loans. 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
22. Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the Seller
is
selling 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. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent direct
ownership of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
Section
23. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Servicer and the Purchaser and the respective permitted successors
and assigns of the Seller and the successors and assigns of the Purchaser.
This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
non-affiliate third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole
or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. There shall be no limitation on the number of assignments
or transfers allowable by the Purchaser with respect to the Mortgage Loans
and
this Agreement. In the event the Purchaser assigns this Agreement, and the
assignee assumes any of the Purchaser’s obligations hereunder, the Seller
acknowledges and agrees to look solely to such assignee, and not to the
Purchaser, for performance of the obligations so assumed and the Purchaser
shall
be relieved from any liability to the Seller with respect thereto.
-71-
Section
24. Waivers.
No term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
Section
25. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
26. 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) 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
terms
“include” and “including” shall mean without limitation by reason of
enumeration.
Section
27. 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 hereto 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 hereto in the regular course of business,
and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
Section
28. Amendment.
This
Agreement may be amended from time to time by the Purchaser, the Seller and
the
Servicer by written agreement signed by the parties hereto.
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Section
29. Confidentiality.
Each of
the Purchaser, the Seller and the Servicer shall employ proper procedures and
standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent: (a) the disclosure of which is reasonably
believed by
such
party to be required in connection with regulatory requirements or other legal
requirements relating to its affairs; (b) disclosed to any one or more of
such party’s employees, officers, directors, agents, attorneys or accountants
who would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person’s duties for
such party, to the extent such party has procedures in effect to inform such
Person of the confidential nature thereof; (c) that such information, with
the prior written consent of the other party, is disclosed in a prospectus,
prospectus supplement or private placement memorandum relating to a
securitization of the Mortgage Loans by the Purchaser (or an affiliate assignee
thereof) or to any Person in connection with the resale or proposed resale
of
all or a portion of the Mortgage Loans by such party in accordance with the
terms of this Agreement; and (d) that is reasonably believed by such party
to be necessary for the enforcement of such party’s rights under this
Agreement.
Notwithstanding
any other express or implied agreement to the contrary, each of the Purchaser,
the Seller and the Servicer agree and acknowledge that each of them and each
of
their employees, representatives, and other agents may disclose to any and
all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except to the extent that confidentiality is reasonably necessary
to comply with U.S. federal or state securities laws. For purposes of this
paragraph, the terms “tax treatment” and “tax structure” have the meanings
specified in Treasury Regulation section 1.6011-4(c).
Section
30. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding relating to the
subject matter hereof between the parties hereto and any prior oral or written
agreements between them shall be deemed to have merged herewith.
Section
31. Further
Agreements.
The
Seller, the Servicer and the Purchaser each agree to execute and deliver to
the
other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate
the
purposes of this Agreement.
Section
32. No
Solicitation.
From
and after the related Closing Date, the Seller agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone
or mail, solicit a Mortgagor under any Mortgage Loan for the purpose of
refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, the Servicer or any of their respective affiliates.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Seller or any affiliate of the Seller which are directed
to
the general public at large, including, without limitation, mass mailing,
internet and e-mail solicitations (which may not be specifically targeted at
the
Mortgagors with respect to the Mortgage Loans) and newspaper, radio and
television advertisements shall not constitute solicitation under this Section
32:
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(a) may
advertise its availability for handling refinancings of mortgages in its
portfolio, including the promotion of terms it has available for such
refinancings, through the sending of letters or promotional material, so long
as
it does not specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the mortgages in the
servicing portfolio of the Seller, the Servicer and any of their affiliates
(those it owns as well as those serviced for others);
(b) may
provide pay-off information and otherwise cooperate with individual mortgagors
who contact it about prepaying their mortgages by advising them of refinancing
terms and streamlined origination arrangements that are available;
and
(c) may
offer
to refinance a Mortgage Loan made within thirty (30) days following
receipt by it of a pay-off request from the related Mortgagor.
Promotions
undertaken by the Seller or the Servicer or by any affiliate of the Seller
or
the Servicer which are directed to the general public at large (including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 32.
Section
33. Waiver
of Jury Trial.
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
34. Compliance
With Regulation AB
Subsection
34.01 (a)
Intent of the Parties; Reasonableness.
The
Purchaser, the Seller and the Servicer acknowledge and agree that the purpose
of
Section 34 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its
terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller and the Servicer acknowledge 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 the disclosure provisions of Regulation AB include
provision of comparable disclosure in private offerings where such disclosure
is
requested of the Seller or the Servicer or customary in similar offerings in
the
industry.
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
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). Each of the Seller and the Servicer 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, each of the Seller and the
Servicer 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 Seller, the Servicer, 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.
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The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller or the Servicer 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.
(b)
Applicability
of Section 34.
Sections 34.02(a)(i)-(v), 34.03(c), (e) and (f), 34.04, 34.05 and 34.06 are
applicable only if the Servicer will (directly or through a Subservicer) service
the Mortgage Loans, at least for an interim period, following
Reconstitution.
Subsection
34.02 Additional
Representations and Warranties of the Seller and the Servicer.
(a) Each
of
the Seller and the Servicer shall be deemed to represent to the Purchaser and
to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection
34.03
that,
except as disclosed in writing to the Purchaser or such Depositor prior to
such
date: (i) the Servicer 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 Servicer;
(ii) the Servicer has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been disclosed
or reported by the Servicer; (iv) no material changes to the Servicer’s policies
or procedures with respect to the servicing function it will perform under
this
Agreement and any Reconstitution Agreement for mortgage loans of a type similar
to the Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no aspects
of
the Servicer’s financial condition that could have a material adverse effect on
the performance by the Servicer of its servicing obligations under this
Agreement or any Reconstitution Agreement; (vi) there are no material legal
or
governmental proceedings pending (or known to be contemplated) against the
Seller, the Servicer, any Subservicer or any Third-Party Originator; and (vii)
there are no affiliations, relationships or transactions relating to the Seller,
the Servicer, 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.
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(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
Subsection
34.03,
the
Seller and the Servicer shall, within five Business Days following such request,
confirm in writing the accuracy of the representations and warranties set forth
in paragraph (a) of this Section or, if any such representation and warranty
is
not accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
Subsection
34.03 Information
to Be Provided by the Seller and the Servicer.
In
connection with any Securitization Transaction the Seller and the Servicer
shall
(i) within five 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 (a), (b), (c) and (f)
of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Seller or the Servicer, 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 (d) of
this
Section.
(a) If
so
requested by the Purchaser or any Depositor, the Seller and the Servicer, as
applicable, shall provide such information regarding (i) the Seller, as
originator of the Mortgage Loans (including as an acquirer of Mortgage Loans
from a Qualified Correspondent), or (ii) each Third-Party Originator, and (iii)
the Servicer and, as applicable, each Subservicer, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
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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(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, the Servicer, each Third-Party
Originator and each Subservicer; and
(D) a
description of any affiliation or relationship between the Servicer, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Servicer
by
the Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor on the basis of its good faith
interpretation of the requirements of Item 1105(c) of Regulation AB, the Seller
or the Servicer shall provide (or, as applicable, cause each Third-Party
Originator to provide), to the extent available to the Seller or the Servicer
(or the Third-Part Originator, as applicable) and the Seller or the Servicer
shall use its good faith efforts to obtain such information, Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller or the Servicer (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 Seller or the Servicer (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 Seller
or
the Servicer, 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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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 Seller or the Servicer 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
Seller or the Servicer.
If
so
requested by the Purchaser or any Depositor, the Seller or the Servicer 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
Seller’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.
(c) If
so
requested by the Purchaser or any Depositor, the Seller or the Servicer, as
applicable, shall provide such information regarding the Seller, the Servicer
as
servicer of the Mortgage Loans, and each Subservicer (each of the Servicer
and
each Subservicer, for purposes of this paragraph, a “Transaction
Servicer”),
as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the
Transaction Servicer’s form of organization;
(B) a
description of how long the Transaction Servicer has been servicing residential
mortgage loans; a general discussion of the Transaction Servicer’s experience in
servicing assets of any type as well as a more detailed discussion of the
Transaction 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 Transaction
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans and information on factors related to the Transaction Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Transaction 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 Transaction Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Transaction Servicer as a servicer during the three-year
period immediately preceding the related Securitization
Transaction;
(4) whether
the Transaction Servicer has been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Transaction Servicer’s
policies or procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreements for mortgage loans of
a
type similar to the Mortgage Loans;
(D) information
regarding the Transaction Servicer’s financial condition, to the extent that
there is a material risk that an adverse financial event or circumstance
involving the Transaction Servicer could have a material adverse effect on
the
performance by the Transaction Servicer of its servicing obligations under
this
Agreement or any Reconstitution Agreement;
(E) information
regarding advances made by the Transaction Servicer on the Mortgage Loans and
the Transaction 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
Transaction Servicer to the effect that the Transaction Servicer has made all
advances required to be made on residential mortgage loans serviced by it during
such period, or, if such statement would not be accurate, information regarding
the percentage and type of advances not made as required, and the reasons for
such failure to advance;
(F) a
description of the Transaction 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 Transaction Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Transaction Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
(d) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller and the Servicer, as applicable, shall
(or
shall cause each Subservicer and Third-Party Originator to) (i) notify the
Purchaser and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Servicer, 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 Seller,
the Servicer, any Subservicer or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Purchaser and any Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
(f) In
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if so requested by
the
Purchaser or any Depositor, the Servicer shall provide such information
regarding the performance or servicing of the Mortgage Loans as is reasonably
required by the Purchaser or any Depositor to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB and to permit
the Purchaser or such Depositor to comply with the provisions of Regulation
AB
relating to Static Pool Information regarding the performance of the Mortgage
Loans on the basis of the Purchaser’s or such Depositor’s reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB
(including without limitation as to the format and content of such Static Pool
Information). 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.
Subsection
34.04 Servicer
Compliance Statement.
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On
or
before March 10 of each calendar year, commencing in 2007, the Servicer 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
Servicer, to the effect that (i) a review of the Servicer’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 officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
Subsection
34.05 Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 10 of each calendar year, commencing in 2007, the Servicer
shall:
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(i)
|
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor) regarding
the
Servicer’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 Servicer, and shall address each of the
Servicing Criteria specified on a certification substantially in
the form
of Exhibit
17
hereto delivered to the Purchaser concurrently with the execution
of this
Agreement;
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(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
Servicer 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;
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(iii)
|
cause
each Subservicer, and each Subcontractor determined by the Servicer
pursuant to Subsection
34.06(b)
to
be “participating in the servicing function” within the meaning of Item
1122 of Regulation AB, to deliver to the Purchaser and any Depositor
an
assessment of compliance and accountants’ attestation as and when provided
in paragraphs (a) and (b) of this Section;
and
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(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
16.
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The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer 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 (a)(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.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
34.05(a)(i)
shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit
17
hereto
delivered to the Purchaser concurrently with the execution of this Agreement
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 Subsection
34.05(a)(iii)
need not
address any elements of the Servicing Criteria other than those specified by
the
Servicer pursuant to Subsection
34.06.
Subsection
34.06 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer 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 Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) It
shall
not be necessary for the Servicer to seek the consent of the Purchaser or any
Depositor to the utilization of any Subservicer. The Servicer shall cause any
Subservicer used by the Servicer (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of this Section and
with Subsections
34.02,
34.03(c)
and
(e),
34.04,
34.05
and
34.07
of this
Agreement to the same extent as if such Subservicer were the Servicer, and
to
provide the information required with respect to such Subservicer under
Subsection
34.03(d)
of this
Agreement. The Servicer 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 Subsection
34.04,
any
assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection
34.05
and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Subsection
34.05
as and
when required to be delivered.
-82-
(b) It
shall
not be necessary for the Servicer to seek the consent of the Purchaser or any
Depositor to the utilization of any Subcontractor. The Servicer 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 Servicer or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Subsections 34.05 and 34.07 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer 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 Subsection
34.05,
in each
case as and when required to be delivered.
Subsection
34.07 Indemnification;
Remedies.
(a) Each
of
the Seller and the Servicer shall indemnify the Purchaser, each affiliate of
the
Purchaser, the Depositor 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 this Section
34
by
or on behalf of the Seller or the Servicer, or provided under this
Section
34
by
or on behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the “Servicer
Information”),
or (b)
the omission or alleged omission to state in the Servicer Information
a
material fact required to be stated in the Servicer 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 Servicer Information and not to any other
information communicated in connection with a sale or purchase of
securities, without regard to whether the Servicer Information or
any
portion thereof is presented together with or separately from such
other
information;
|
-83-
|
(ii)
|
any
failure by the Seller, the Servicer, any Subservicer, any Subcontractor
or
any Third-Party Originator to deliver any information, report,
certification, accountants’ letter or other material when and as required
under this Section
34,
including (except as provided below) any failure by the Servicer
to
identify pursuant to Subsection
34.06(b)
any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB;
or
|
|
(iii)
|
any
breach by the Seller or the Servicer of a representation or warranty
set
forth in Subsection
34.02(a)
or
in a writing furnished pursuant to Subsection
34.02(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 Seller or the Servicer of
a
representation or warranty in a writing furnished pursuant to Subsection
34.02(b)
to
the extent made as of a date subsequent to such closing
date.
|
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller or the Servicer, as applicable, 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 Seller, the Servicer, any Subservicer, any Subcontractor or any
Third-Party Originator.
(b) (i)
Any
failure by the Seller, the Servicer, any Subservicer, any Subcontractor or
any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under this
Section
34,
or any
breach by the Seller or the Servicer of a representation or warranty set forth
in Subsection
34.02(a)
or in a
writing furnished pursuant to Subsection
34.02(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 Servicer of a representation or warranty in a writing
furnished pursuant to Subsection
34.02(b)
to the
extent made as of a date subsequent to such closing date, shall, except as
provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Servicer 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 Servicer 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 Servicer;
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 Servicer as servicer,
such provision shall be given effect.
-84-
(ii) Any
failure by the Seller, the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Subsection
34.04
or
34.05,
including (except as provided below) any failure by the Servicer to identify
pursuant to Subsection
34.06(b)
any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Servicer 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 Servicer as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to the Seller; 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 Servicer 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 Seller or the Servicer pursuant to this subparagraph (b)(ii)
if a failure of the Seller or the Servicer 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
Servicer 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
Servicer 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.
Subsection
34.08 Loan
Performance Information.
With
respect to those Mortgage Loans that were originated by the Seller and sold
to
the Purchaser pursuant to this Agreement and subsequently securitized by the
Purchaser or any of its Affiliates, the Purchaser shall, to the extent
consistent with then-current industry practice, cause any Successor Servicer
(if
the Servicer has been terminated hereunder) (or another party to such
securitization) under the securitization to provide, information with respect
to
the Mortgage Loans from and after cut-off date of such securitization necessary
for the Seller to comply with its obligations under Regulation AB, including,
without limitation, providing to the Seller static pool information, as set
forth in Item 1105(a)(2) and (5) of Regulation AB (“Loan
Performance Data”).
-85-
If
the
Servicer has been terminated hereunder, the Purchaser shall, or cause the
Successor Servicer to, indemnify the Seller or such, each Person who controls
the Seller, each affiliate of the Seller and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, reasonable 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: (A) any untrue statement of a material fact
contained or alleged to be contained in the Loan Performance Information or
(B)
the omission or alleged omission to state in the Loan Performance Information
a
material fact required to be stated in the Loan Performance 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 Loan Performance Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Loan Performance Information or any portion thereof is presented
together with or separately from such other information.
In
addition, any notice or request that must be “in writing” or “written” may be
made by electronic mail.
[Signature
Page Follows]
-86-
IN
WITNESS WHEREOF, the Purchaser, the Seller and the Servicer have caused their
names to be signed hereto by their respective officers thereunto duly authorized
on the date first above written.
XXXXXXX
XXXXX MORTGAGE
COMPANY,
a New York limited partnership
(Purchaser)
(Purchaser)
By:
XXXXXXX
SACHS REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
FUNDING CORP., a New York
corporation, as General Partner
By:
__________________________________
Name:
Title:
Name:
Title:
AMERICAN
HOME MORTGAGE CORP.
(Seller)
(Seller)
By:
__________________________________
Name:
Title:
Name:
Title:
AMERICAN
HOME MORTGAGE
SERVICING, INC.
(Servicer)
SERVICING, INC.
(Servicer)
By:
__________________________________
Name:
Title:
Name:
Title:
-87-
EXHIBIT
1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall consist of
the
following:
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”)
by an
authorized officer. To the extent that there is no room on the face of the
Mortgage Notes for endorsements, the endorsement may be contained on an allonge,
if state law so allows and the Custodian is so advised by the Seller that state
law so allows. If the Mortgage Loan was acquired by the Seller in a merger,
the
endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
“[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an original
or
copy of the Security Agreement. If in connection with any Mortgage Loan, the
Seller 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 Seller 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 Seller (or certified by the title
company, escrow agent, or closing attorney) 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
Seller; 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 to be a true and complete copy of
the
original recorded Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording
(except with respect to MERS Designated Loans). The Assignment of Mortgage
must
be duly recorded only if recordation is either necessary under applicable law
or
commonly required by private institutional mortgage investors in the area where
the Mortgaged Property is located or on direction of the Purchaser as provided
in this Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall be assigned to the Purchaser. If the Assignment of Mortgage is not to
be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by “American Home Mortgage Corp., successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must be
by
“American Home Mortgage Corp., formerly known as [previous name]”;
EXH.
1-1
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) 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 Seller 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 Seller (or certified by the title company, escrow
agent, or closing attorney) 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 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 Seller; 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;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance
company;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of such Co-op Lease, with all intervening assignments showing a complete chain
of title and an assignment thereof by Seller; (ii) the stock certificate
together with an undated stock power relating to such stock certificate executed
in blank; (iii) the recognition agreement of the interests of the Mortgagee
with respect to the Co-op Loan by the residential cooperative housing
corporation, the stock of which was pledged by the related Mortgagor to the
originator of such Co-op Loan; and (iv) copies of the financial statement
filed by the originator as secured party and, if applicable, a filed UCC-3
assignment of the subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
EXH.
1-2
(j) if
any of
the above documents has been executed by a person holding a power of attorney,
an original or photocopy of such power certified by the Seller to be a true
and
correct copy of the original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within
90 days of the related Closing Date, an Officer’s Certificate which shall
(i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by
the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian; provided,
however,
that
any recorded document shall in no event be delivered later than one year
following the related Closing Date. An extension of the date specified in
clause (iv) above may be requested from the Purchaser, which consent
shall not be unreasonably withheld.
EXH.
1-3
EXHIBIT
2
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, unless otherwise disclosed to the Purchaser on the data tape,
which shall be available for inspection by the Purchaser and which shall be
retained by the Servicer or delivered to the Purchaser:
(a) Copies
of
the Mortgage Loan Documents.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income, if required.
(e) Verification
of acceptable evidence of source and amount of downpayment.
(f) Credit
report on Mortgagor, in a form acceptable to either Xxxxxx Xxx or Xxxxxxx
Mac.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property and photographs of comparable properties.
(i) Survey
of
the Mortgaged Property, unless a survey is not required by the title
insurer.
(j) 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, home owner association declarations, etc.
(k) Copies
of
all required disclosure statements.
(l) If
applicable, termite report, structural engineer’s report, water potability and
septic certification.
(m) Sales
Contract, if applicable.
(n) Copy
of
the owner’s title insurance policy or attorney’s opinion of title and abstract
of title, as applicable.
(o) Evidence
of electronic notation of the hazard insurance policy, and, if required by
law,
evidence of the flood insurance policy.
EXH.
2-1
EXHIBIT
3
FORM
OF
INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”),
dated
as of [_______], 200_, among [________________] (the “Depositor”),
a
[______________] corporation (the “Depositor”),
Xxxxxxx Sachs Mortgage Company, a New York limited partnership (“Goldman”)
and
[_____________], a [_______________] (the “Seller”).
WITNESSETH:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus
Supplement”),
relating to [________________] Certificates (the “Certificates”)
to be
issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the “P&S”),
among
the Depositor, as depositor, [________________], as servicer (the “Servicer”),
and
[________________], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”)
to
enter into the Underwriting Agreement, dated [____________________] (the
“Underwriting
Agreement”),
between the Depositor and the Underwriter[s], and [_______________] (the
“Initial
Purchaser[s]”)
to
enter into the Certificate Purchase Agreement, dated [____________] (the
“Certificate
Purchase Agreement”),
between the Depositor and the Initial Purchaser[s], Seller has agreed to provide
for indemnification and contribution on the terms and conditions hereinafter
set
forth;
WHEREAS,
Goldman purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage
Loans”)
pursuant to a Second Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of May 1, 2006 (the “Sale
and Servicing Agreement”),
by
and between Goldman and Seller; and
WHEREAS,
pursuant to Section 15 of the Sale and Servicing Agreement, the Seller has
agreed to indemnify the Depositor, Goldman, the Underwriter[s], the Initial
Purchaser[s] and their respective affiliates, present and former directors,
officers, employees and agents.
EXH.
3-1
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Goldman and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Goldman, the
Underwriter[s], the Initial Purchaser[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Goldman, the
Underwriter[s], the Initial Purchaser[s] or such affiliate within the meaning
of
either Section 15 of the Securities Act of 1933, as amended (the
“1933 Act”),
or
Section 20 of the Securities Exchange Act of 1934, as amended (the
“1934
Act”),
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the 1933 Act, the 1934 Act
or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon (i) any breach
of
the representation set forth in Section 2 (vii) and (ii) any untrue statement
or
alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Offering Circular, ABS Informational and Computational Materials
or the Free Writing Prospectus or any omission or alleged omission to state
in
the Prospectus Supplement, the Offering Circular, any ABS Informational and
Computational Materials, any Free Writing Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials or the Free Writing Prospectus and agrees to reimburse
the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s] or such
affiliates and each such officer, director, employee, agent and controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by any of them in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however,
that
Seller shall be liable in any such case only to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with the Seller Information. The foregoing
indemnity agreement is in addition to any liability which Seller may otherwise
have to the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s]
their affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s]
or their respective affiliates.
EXH.
3-2
As
used
herein:
“ABS
Informational and Computational Material”
means
any written communication as defined in Item 1101(a) of Regulation AB under
the
1933 Act and the 1934 Act, as may be amended from time to time.
“Agreement”
means
this Indemnification and Contribution Agreement, as the same may be amended
in
accordance with the terms hereof
“Free
Writing Prospectus”
means
any written communication that constitutes a “free writing prospectus,” as
defined in Rule 405 under the 1933 Act.
“Seller
Information”
means
(A) all information in the Prospectus Supplement, the Offering Circular, any
ABS
Informational and Computational Materials or any Free Writing Prospectus or
any
amendment or supplement thereto, (i) contained under the headings [“Transaction
Overview—Parties—The Responsible Party”] and [“The Mortgage Loan
Pool—Underwriting Guidelines”] and (ii) regarding the Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties (but in the case
of
this clause (ii), only to the extent any untrue statement or omission or alleged
untrue statement or omission arises from or is based upon errors or omissions
in
the information concerning the Mortgage Loans, the related Mortgagors and/or
the
related Mortgaged Properties, as applicable, provided to the Depositor or any
Affiliate thereof by or on behalf of the Seller or any Affiliate thereof),
and
(B) [and static pool information provided by or on behalf of the Seller,
regarding mortgage loans originated or acquired by the Seller [and included
in
the Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials or the Free Writing Prospectus] [incorporated by
reference from the website located at ______________].
“Offering
Circular”
means
the offering circular, dated [__________] relating to the private offering
of
the [_______________] Certificates.
“Regulation
AB”
means
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.
(b) Promptly
after receipt by any indemnified party under this Section 1
of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1,
notify
the indemnifying party in writing of the claim or the commencement of that
action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1
except
to the extent it has been materially prejudiced by such failure; and
provided, further,
however,
that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.
EXH.
3-3
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, except as provided in the following paragraph,
the indemnifying party shall not be liable to the indemnified party under this
Section 1
for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that in the reasonable judgment of such counsel it
is
necessary or appropriate for such indemnified party to employ separate counsel
due to actual or potential differing interests between the parties; or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party,
in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such action on behalf of such indemnified party, it being understood, however,
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified
parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1,
shall
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If
the
indemnification provided for in this Section 1
is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
XXX.
0-0
(x) The
indemnity and contribution agreements contained in this Section 1
and the
representations and warranties set forth in Section 2
shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the
Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s], their
respective affiliates, directors, officers, employees or agents or any person
controlling the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s]
or any such affiliate, and (iii) acceptance of and payment for any of the
Offered Certificates or Private Certificates.
2. Representations
and Warranties.
Seller
represents and warrants that:
(i) Seller
is
validly existing and in good standing under the laws of its jurisdiction of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently engaged.
Seller is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or any
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of Seller;
(ii) Seller
is
not required to obtain the consent of any other person or any consent, license,
approval or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect on
the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of the Seller enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally, by the availability of equitable
remedies, and by limitations of public policy under applicable securities law
as
to rights of indemnity and contribution thereunder; and
EXH.
3-5
(vi) this
Agreement has been duly executed and delivered by Seller;
(vii) The
Seller hereto represents that the Seller Information satisfies the requirements
of the applicable provisions of Regulation AB.
3. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and confirmed
by mail [______________________]; if sent to Goldman, will be mailed, delivered
or faxed or emailed and confirmed by mail to Xxxxxxx Sachs Mortgage Company,
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxxx Xxxx, Tel: (000) 000-0000, Fax: (000) 000-0000, with a copy to Xxxxxxx
Sachs Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Tel: (000)
000-0000, Fax (000) 000-0000; if to the Depositor, will be mailed, delivered
or
telegraphed and confirmed to [____________________]; or if to the
Underwriter[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________]; or if to the Initial Purchaser[s], will be mailed,
delivered or telegraphed and confirmed to [_____________________].
4. Miscellaneous.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws
provisions thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns and the controlling
persons referred to herein, and no other person shall have any right or
obligation hereunder. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or
termination is sought. This Agreement may be executed in counterparts, each
of
which when so executed and delivered shall be considered an original, and all
such counterparts shall constitute one and the same instrument. Capitalized
terms used but not defined herein shall have the meanings provided in the
P&S.
5. Submission
To Jurisdiction; Waivers.
The
Seller hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
EXH.
3-6
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
[SIGNATURE
PAGE FOLLOWS]
EXH.
3-7
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[_____________].
[DEPOSITOR]
|
By:
|
___________________________________
|
Name:
Title:
XXXXXXX
SACHS MORTGAGE COMPANY
|
By:
|
XXXXXXX
XXXXX REAL ESTATE FUNDING CORP., a New York corporation, as General
Partner
|
By:
___________________________________
Name:
Title:
AMERICAN
HOME MORTGAGE CORP.
By:
___________________________________
Name:
Title:
EXH.
3-8
EXHIBIT
4
CUSTODIAL
ACCOUNT CERTIFICATION
_________
__, 200__
American
Home Mortgage Servicing, Inc. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Subsection 11.04
of the
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as
of May 1, 2006, Fixed and Adjustable Rate Mortgage Loans.
|
Title of
Account: “American Home Mortgage
Servicing, Inc., in trust for Xxxxxxx Sachs Mortgage Company as Purchaser
of Mortgage Loans and various Mortgagors.”
|
||
|
Account
Number: __________________________
|
||
|
Address
of office or
|
||
|
branch
of [_____________________]
|
||
|
at
which the Custodial
|
||
|
Account
is maintained:
|
______________________
|
|
|
______________________
|
||
|
______________________
|
||
AMERICAN
HOME MORTGAGE SERVICING, INC.
By:
_____________________________
Name:
Title:
Name:
Title:
EXH.
4-1
EXHIBIT
5
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Second Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of May 1, 2006, we hereby authorize and request you to
establish an account, as a Custodial Account, to be designated as “American Home
Mortgage Servicing, Inc., in trust for Xxxxxxx Xxxxx Mortgage Company as
Purchaser of Mortgage Loans and various Mortgagors.” All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Servicer. You
may refuse any deposit which would result in violation of the requirement that
the account be fully insured as described below. This letter is submitted to
you
in duplicate. Please execute and return one original to us.
AMERICAN
HOME MORTGAGE SERVICING, INC., Servicer
By:
______________________________
Name:
Title:
Name:
Title:
EXH.
5-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund (“BIF”)
or the
Savings Association Insurance Fund (“SAIF”).
[___________________________],
as Depository
as Depository
By:
______________________________________
Name:
Title:
Date:
Name:
Title:
Date:
EXH.
5-2
EXHIBIT
6
ESCROW
ACCOUNT CERTIFICATION
_________
__, 200__
American
Home Mortgage Servicing, Inc. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Subsection 11.06
of the
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as
of May 1, 2006, Fixed and Adjustable Rate Mortgage Loans.
|
Title of
Account: “American Home Mortgage
Servicing, Inc., in trust for Xxxxxxx Sachs Mortgage Company as Purchaser
of Mortgage Loans and various Mortgagors.”
|
||
|
Account
Number: __________________________
|
||
|
Address
of office or
|
||
|
branch
of [_____________________]
|
||
|
at
which the Custodial
|
||
|
Account
is maintained:
|
______________________
|
|
|
______________________
|
||
|
______________________
|
||
AMERICAN
HOME MORTGAGE SERVICING, INC., Servicer
By:
________________________________________
Name:
Title:
Name:
Title:
EXH.
6-1
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the Second Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of May 1, 2006, we hereby authorize and request you to
establish an account, as an Escrow Account, to be designated as “American Home
Mortgage Servicing, Inc., in trust for Xxxxxxx Xxxxx Mortgage Company as
Purchaser of Mortgage Loans and various Mortgagors.” All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Servicer. You
may refuse any deposit which would result in violation of the requirement that
the account be fully insured as described below. This letter is submitted to
you
in duplicate. Please execute and return one original to us.
AMERICAN
HOME MORTGAGE SERVICING, INC., Servicer
By:
________________________________
Name:
Title:
Name:
Title:
EXH.
7-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ____________________ at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The account will be insured by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund (“BIF”)
or the
Savings Association Insurance Fund (“SAIF”).
[____________________],
as Depository
as Depository
By:
_____________________________________
Name:
Title:
Date:
Name:
Title:
Date:
EXH.
7-2
EXHIBIT
8
UNDERWRITING
GUIDELINES
[SELLER
TO PROVIDE]
EXH.
8-1
EXHIBIT
9
REQUIRED
FIELDS FOR MONTHLY REMITTANCE REPORT
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Servicer
Monthly Updated Information
|
|||
|
Loan
Number
|
Loan
Number currently being used to service this loan.
|
123456789
|
|
|
Investor
Number
|
This
is the servicer assigned number for reporting purposes.
|
691
|
|
|
Investor
Category
|
This
is the servicer assigned category for reporting purposes.
|
2
|
|
|
As
of Date
|
As
of Date of data being provided
|
||
|
Servicing
Method
|
Indicates
whether the loan is serviced on an actual or scheduled basis.
(act/act,act/sched,sched/act,sched/sched)
|
(sched/sched)
|
|
|
Delinquency
Convention
|
Indicates
if ABS or MBS method for reporting delinquencies is used.
|
MBS
|
|
|
Beginning
Scheduled Balance
|
Beginning
scheduled loan balance. If the loan is serviced on a scheduled balance
basis
|
||
|
Ending
Scheduled Balance
|
Ending
scheduled loan balance. If the loan is serviced on a scheduled balance
basis
|
||
|
Beginning
Actual Balance
|
Actual
balance at the beginning of the period. This is most likely last
period's
ending balance carried forward
|
||
EXH.
9-1
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Ending
Actual Balance
|
Ending
actual principal balance outstanding
|
||
|
Accrued
Interest
|
Total
Accrued Interest on loan.
|
||
|
Current
Maturity Date
|
This
is the actual date when the last payment on the loan is scheduled
to be
made. For balloons it should be the balloon date. For modified loans
it
should be the modified maturity date.
|
1/1/2020
|
|
|
Current
Scheduled PITI
|
Current
scheduled Principal, Interest, Tax and Insurance payment
|
||
|
Current
Scheduled PI
|
Current
scheduled amount of monthly Principal and Interest
|
||
|
Current
Interest Rate
|
Interest
Rate in effect for currently outstanding payment.
|
8.55
|
|
|
Current
Net Interest Rate
|
The
current rate exclusive of LPMI, servicing and other fees.
|
7.55
|
|
|
Lien
Position
|
Number
used to identify the lien position in effect at the time of application.
Example: 1, 2, 3, O (other)
|
1
|
|
|
Senior
Lien Amount
|
Most
recently recorded senior lien amount.
|
0
|
|
|
Remaining
Term
|
The
Remaining Term of the loan
|
179
|
|
|
Scheduled
Due Date
|
Scheduled
payment date.
|
2/1/2005
|
|
|
Next
Due Date
|
Date
next payment is due.
|
2/1/2005
|
|
|
Interest
Paid To Date
|
Date
interest is paid to. Typically for 30/360 loans it is one month prior
to
Next Due Date.
|
1/1/2005
|
|
|
Last
Payment Date
|
Date
last payment was made.
|
1/1/2005
|
|
EXH.
9-2
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Status
of Loan
|
Code/literal
used to identify loan status. Provide enumerations worksheet if
applicable. EX: Current, Foreclosure, Bankruptcy, REO, etc.
|
Foreclosure
|
|
|
12
Month Pay String
|
12
character string representing the timing of payments received on
a rolling
12 month basis. String should begin with January and end with December.
|
||
|
Last
Modification Date
|
Date
that loan was last modified.
|
||
|
Extensions
Granted
|
Number
of extensions granted, life of loan
|
||
|
Total
Extension Months
|
Number
of months loan has been extended in total.
|
||
|
Recent
Property Valuation
|
Most
recent appraised value or BPO value.
|
||
|
Recent
Property Valuation Date
|
Date
of most recent valuation.
|
||
|
Valuation
Method
|
Identify
method used to obtain new valuation. Provide enumerations worksheet
if
applicable.
|
||
|
Valuation
Firm
|
Name
of the Firm who appraised the property
|
||
|
Current
FICO
|
Current
FICO score.
|
||
|
FICO
Date
|
Current
FICO Date.
|
||
|
Servicing
Fee Percentage
|
The
fee rate to service the loan
|
||
|
Servicing
Fee Payment
|
The
actual service fee for the loan for the given month
|
||
|
Total
Monthly Payment
|
Total
cash received from borrower.
|
||
|
Total
Monthly Payment Principal
|
Cash
applied to principal.
|
||
|
Total
Monthly Payment Interest
|
Cash
applied to interest.
|
||
EXH.
9-3
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Total
Monthly Payment Ancillary Fees
|
Cash
applied to fees.
|
||
|
Total
Monthly Prepayment Amount
|
Total
principal curtailment
|
||
|
Interest
Adjustment
|
Adjustments
made to a previous month's interest
|
||
|
Principal
Adjustment
|
Adjustments
made to a previous month's principal
|
||
|
Negative
Amortization Amount (Monthly)
|
The
monthly negative amortization amount
|
||
|
Negative
Amortization Amount (Total)
|
The
negative amortization amount up-to-date
|
||
|
Advances
|
|||
|
Escrow
Balance
|
Current
balance of escrow account (borrower's positive funds)
|
||
|
Monthly
Escrow Advances
|
Net
escrow advances made or recovered by servicer. Positive value denotes
payments made by servicer.
|
||
|
Escrow
Advance Balance
|
Total
outstanding escrow advance balance.
|
||
|
Monthly
Corporate Advances
|
Net
corporate advances made or recovered by servicer. Positive value
denotes
payments made by servicer.
|
||
|
Recoverable
Corporate Advance Balance
|
Recoverable
corporate advance balance where a + denotes a payment made by the
servicer
|
||
|
Non
Recoverable Corporate Advance Balance
|
Balance
of Corporate Advances made that are not recoverable from the
borrower
|
||
EXH.
9-4
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Total
Corporate Advance Balance
|
Total
outstanding Corporate Advance Balance
|
||
|
Monthly
Principal Advances
|
Amount
of principal advanced in current month
|
||
|
Principal
Advance Balance
|
Total
outstanding principal advances made by servicer.
|
||
|
Monthly
Interest Advances
|
Amount
of interest advanced in current month
|
||
|
Interest
Advance Balance
|
Total
outstanding interest advances made by servicer.
|
||
|
Suspense
Account Balance
|
Total
suspense account balance
|
||
|
Stop
Advance Flag
|
Code
indicating loan has been placed in a stop advance status. Example:
Y=Stop
Advance.
|
||
|
Stop
Advance Start Date
|
Date
loan was initially placed on a stop advance status.
|
||
|
Stop
Advance Recovered
|
Amount
of principal and interest advances recovered at stop date.
|
||
|
Stop
Advance Reversal Date
|
Date
stop advance status was reversed.
|
||
|
Stop
Advance Reversal Amount
|
Amount
of advances reversed.
|
||
|
Flood
/ Hazard / Other Insurance
|
|||
|
Hazard
Insurance Carrier
|
|||
|
Hazard
Insurance Amount
|
|||
|
Hazard
Expiration Date
|
|||
|
Force-Placed
Hazard Insurance
|
Y/N
|
||
|
Flood
Insurance Carrier
|
|||
|
Flood
Insurance Amount
|
|||
|
Flood
Insurance Date
|
|||
|
Force-Placed
Flood Insurance
|
Y/N
|
||
|
Flood
Zone
|
FEMA
zones (Zone A, Zone B, etc.)
|
||
EXH.
9-5
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Other
Insurance
|
Provide
enumerations. Ex: Wind, earthquake, etc.
|
||
|
Default
|
|||
|
Last
Contact Date
|
Date
of Servicer's last contact with the borrower.
|
||
|
Last
Attempt Date
|
Date
of the Servicer's last attempt to contact the borrower.
|
||
|
Reason
For Default
|
Servicer
Code representing the Reason for Default. Provide Enumerations
worksheet.
|
||
|
In
Demand Flag
|
Code
indicating demand letter has been sent.
|
||
|
In
Demand Start Date
|
Date
demand letter was sent.
|
||
|
In
Demand End Date
|
Expiration
of demand letter.
|
||
|
Forbearance
Flag
|
Formal
forbearance payment plan.
|
Y/N
|
|
|
Payment
Plan Flag
|
Informal
or verbal payment plan agreement
|
Y/N
|
|
|
Forbearance
Start Date
|
Date
forbearance plan was initiated.
|
||
|
Forbearance
End Date
|
Date
forbearance plan scheduled to be complete.
|
||
|
Bankruptcy
Flag
|
Flag
indicating loan is in bankruptcy.
|
||
|
Bankruptcy
Chapter
|
Chapter
of bankruptcy (7, 11, 12, 13, OTH).
|
||
|
Bankruptcy
Start Date
|
Bankruptcy
filing date.
|
||
|
Bankruptcy
Release Date
|
Dismissal
/ Discharge date
|
||
|
Bankruptcy
Release Type
|
Dismissal
/ Discharge / Motion for Relief
|
||
|
Bankruptcy
Post Petition Due Date
|
Payment
due date of Bankruptcy payment plan, i.e. the new due
date.
|
||
|
Motion
for Relief Request Date
|
Motion
for relief referral date.
|
||
EXH.
9-6
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Motion
for Relief Filing Date
|
Date
motion for relief filed with the court.
|
||
|
Motion
for Relief Hearing Date
|
Motion
for Relief Hearing Date.
|
||
|
Motion
for Relief Granted Date
|
Motion
for Relief Granted Date.
|
||
|
Motion
for Relief Denied Date
|
Date
the motion was Denied (if applicable)
|
||
|
Foreclosure
Indicator Flag
|
Y/N
|
||
|
First
Legal Date
|
Date
of first legal action taken on foreclosure.
|
||
|
Foreclosure
Start Date
|
Date
of Referral to FC Attorney
|
||
|
Foreclosure
Estimated Sale Date
|
Projected
date of foreclosure sale.
|
||
|
Foreclosure
Sale Date
|
Date
of actual foreclosure sale.
|
||
|
Foreclosure
On Hold
|
Flag
indicating that the loan is in foreclosure but on hold.
|
||
|
Foreclosure
Hold Start Date
|
Date
indicating when the loan's foreclosure proceedings were put on
hold.
|
||
|
Bankruptcy
Delays
|
Number
of days an active foreclosure has been in BK subsequent to its initial
foreclosure start date.
|
||
|
Non
- Cash Delays
|
Number
of allowable days that a loan's foreclosure proceedings have been
on hold
due to a non cash delay (i.e. Title problem…) [again as per Fannie or
Xxxxxxx time line]
|
||
|
REO
Start Date
|
|||
|
REO
End Date
|
Date
property is sold.
|
||
EXH.
9-7
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
REO
Sub Status
|
Status
while within REO. Provide enumerations worksheet if applicable. Ex:
Eviction, Redemption, PreMarket, Listed, Under Contract
|
||
|
Possession
Date
|
Date
when the servicer takes possession of the property. Date we have
full
access to the property, eviction completed
|
||
|
Eviction
Start Date
|
Date
that the REO enters "Eviction" sub status
|
||
|
Eviction
End Date
|
Date
eviction action closed
|
||
|
Under
Contract Date
|
Date
that the REO enters "Under Contract" sub status
|
||
|
Under
Contract Price
|
|||
|
Estimated
Closing Date
|
Servicer
estimated closing date on loan
|
||
|
Actual
Closing Date
|
Actual
closing date on loan.
|
||
|
Redemption
End Date
|
Legal
time period, determined by State, when borrower can redeem their
property.
Property not available for sale until redemption completed (no beginning
date, just an end date)
|
||
|
Initial
Listing Price
|
First
listing price of property.
|
||
|
Initial
Listing Date
|
Date
of the first listing price of property
|
||
|
Current
List Price
|
Most
recent listing price of property.
|
||
|
Current
List Date
|
Date
of the most recent listing price of property.
|
||
|
Original
REO Value
|
Original
REO target value
|
||
|
Current
REO Value
|
Current
REO target value
|
||
|
FHA
/ VA
|
|||
EXH.
9-8
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Conveyance
Condition Date
|
Date
property has been placed into condition acceptable by HUD for title
transfer
|
||
|
FHA
Case #
|
FHA
case number
|
||
|
VA
Loan Identification Number
|
VA
loan identification number
|
||
|
Debenture
Rate
|
HUD
assigned debenture rate
|
||
|
First
Vacancy Date
|
Date
property first became vacant
|
||
|
FHA
Default Date
|
Default
date as defined by FHA
|
||
|
Date
FHA Part A Filed
|
Date
servicer files Part A with HUD
|
||
|
Date
FHA Part A Settlement Date
|
Date
Part A funds are received from HUD to the servicer
|
||
|
Amount
of Part A Funds Received
|
Amount
of funds received from HUD to the servicer
|
||
|
Date
Deed Sent for Recording
|
Date
servicer forwards the deed for recordation
|
||
|
Title
Approval date
|
Date
title approved by HUD
|
||
|
Date
FHA Part B Filed
|
Date
servicer files Part B with HUD
|
||
|
Date
FHA Part B Settlement Date
|
Date
Part B funds are received from HUD to the servicer
|
||
|
Amount
of Part B Funds Received
|
Amount
of funds received from HUD to the servicer
|
||
|
Date
VA Claim Filed
|
Date
VA claim filed with VA
|
||
|
Curtailment
Amount 1
|
Amount
of HUD or VA curtailment
|
||
|
Curtailment
Date 1
|
Date
of HUD or VA curtailment
|
||
|
Curtailment
Adjusted Amount 1
|
Curtailment
amount received from HUD or VA claim
|
||
|
Curtailment
Amount 2
|
Amount
of HUD or VA curtailment 2nd curtailment
|
||
EXH.
9-9
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Curtailment
Date 2
|
Date
of HUD or VA curtailment 2nd curtailment
|
||
|
Curtailment
Adjusted Amount 2
|
Curtailment
amount received from HUD or VA claim 2nd curtailment
|
||
|
Curtailment
Amount 3
|
Amount
of HUD or VA curtailment 3rd curtailment
|
||
|
Curtailment
Date 3
|
Date
of HUD or VA curtailment 3rd curtailment
|
||
|
Curtailment
Adjusted Amount 3
|
Curtailment
amount received from HUD or VA claim 3rd curtailment
|
||
|
VA
Cutoff Date
|
Date
of loan liquidation or date deed is recorded
|
||
|
Partial
Claim Amount
|
Amount
of arrears placed into a partial claim in order to bring the borrower
current
|
||
|
Partial
Claim Date
|
Date
partial claim was completed or that the loan is brought current as
a
result of the completed partial claim
|
||
|
Termination
Information
|
|||
|
Liquidation
Date
|
|||
|
Liquidation
Type
|
Type
of liquidation (charge-off, Third party sale, etc). Provide enumerations
worksheet if applicable.
|
||
|
Balance
at Liquidation
|
Actual
Principal balance at time of liquidation
|
||
|
Gross
Total Proceeds
|
Gross
Total Proceeds.
|
||
|
Net
Total Proceeds
|
Gross
total proceeds less expenses.
|
||
EXH.
9-10
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Principal
Advanced at Liquidation
|
Total
of principal advanced at time of liquidation.
|
||
|
Interest
Advanced at Liquidation
|
Total
of interest advanced at time of liquidation.
|
||
|
Corporate
Advances at Liquidation
|
Corporate
advance balance at time of liquidation.
|
||
|
Escrow
Advances at Liquidation
|
Escrow
advance balance at time of liquidation.
|
||
|
Principal
Advances Recovered at Liquidation
|
The
amount of the Principal balance recovered at liquidation
|
||
|
Interest
Advances Recovered at Liquidation
|
The
amount of the Interest balance recovered at liquidation
|
||
|
Corporate
Advances Recovered at Liquidation
|
The
amount of the Total Corporate Advance balance recovered at
liquidation
|
||
|
Escrow
Advances Recovered at Liquidation
|
The
amount of the Total Escrow Advance balance recovered at
liquidation
|
||
|
Commission
|
The
broker commission amount on liquidation
|
||
|
Seller
Concession
|
The
dollar amount of seller concessions upon liquidation.
|
||
|
Repairs
|
Cost
of Repairs to property
|
||
|
Servicer
Hold Back Amount
|
Amount
servicer withholds for future trailing expenses.
|
||
|
Charge-off
amount
|
Loss
amount.
|
||
|
Paid
in Full Loans
|
|||
|
Paid-Off
Indicator
|
User
defined
|
||
|
Paid-Off
Date
|
|||
|
Pre-Payment
Penalty Flag
|
Y/N
|
||
|
Pre-Payment
Penalty Collected
|
Dollar
amount of penalty collected
|
||
EXH.
9-11
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Balance
at Termination
|
Actual
Principal balance at time of termination.
|
||
|
Principal
Amount Collected
|
|||
|
Interest
Amount Collected
|
|||
|
Receivables
After Loss Insurance
|
|||
|
Hazard
Insurance Claim Date
|
Date
hazard claim filed.
|
||
|
Hazard
Insurance Claim Due Date
|
Date
hazard claim due.
|
||
|
Hazard
Insurance Claim Amount
|
Amount
of hazard claim.
|
||
|
Hazard
Insurance Claim Paid Amount
|
Amount
of hazard claim paid to investor.
|
||
|
MI
Insurance Claim Date
|
Date
MI claim filed.
|
||
|
MI
Insurance Claim Due Date
|
Date
MI claim is due to be paid.
|
||
|
MI
Insurance Claim Amount
|
Expected
MI proceeds.
|
||
|
MI
Insurance Claim Paid Amount
|
Actual
MI proceeds received.
|
||
|
Receivables
After Loss Deficiency
|
|||
|
Potential
Deficiency Judgment Flag
|
Flag
indicating loan is referred for deficiency collections.
|
||
|
Potential
Deficiency Amount
|
Deficiency
balance reported to borrower/IRS.
|
||
|
Deficiency
Proceeds (this period)
|
Deficiency
proceeds collected in current month.
|
||
|
Net
Deficiency Proceeds (this period)
|
|||
|
Total
Deficiency Proceeds (to date)
|
Deficiency
proceeds collected to date.
|
||
|
Total
Net Deficiency Proceeds (to date)
|
|||
EXH.
9-12
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Deficiency
Vendor Expense
|
Deficiency
vendor out of pocket expenses.
|
||
|
Static
Data
|
|||
|
Borrower
Name Last Name
|
Borrower's
Last Name
|
Xxx
|
|
|
Borrower
Name First Name
|
Borrower's
First Name
|
Xxx
|
|
|
Borrower
Social Security Number/TIN
|
Eleven
character ID. Example: 000-00-0000.
|
000-00-0000
|
|
|
Origination
Date
|
Origination
Date shown on loan documents.
|
12/25/2004
|
|
|
Loan
Type
|
Code/literal
to identify the loan type. (Conventional [w/] PMI , Jumbo, FHA, VA,
etc)
|
Conventional
- PMI
|
|
|
Property
Type
|
Code/literal
that identifies the type of property securing the loan. ( 2 Family,
PUD)
|
PUD
|
|
|
Occupancy
Type
|
Occupancy
status at time of application. (2nd home, owner occupied, vacant,
etc)
|
OO
|
|
|
Property
Address
|
Property
address, not billing address.
|
000
Xxxxxxx Xxxx
|
|
|
Property
City
|
Property
city.
|
Toronto
|
|
|
Property
State
|
Property
state.
|
NY
|
|
|
Property
Zip
|
Property
zip.
|
10004
|
|
|
Original
Balance
|
Original
amount of loan granted to borrower. In the case of construction loans
this
should be the full amount extended on which the monthly payments
are
based.
|
250000.00
|
|
|
Original
Senior Lien Amount
|
Amount
of senior lien outstanding when loan was originated.
|
0.00
|
|
EXH.
9-13
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Original
Interest Rate
|
Original
contractual interest rate for loan. ( provide all decimal
places)
|
8.515
|
|
|
First
Payment Date
|
This
is the contractual date when the first payment was to be made.
|
2/1/2005
|
|
|
Original
Maturity Date
|
This
is the contractual date when the last payment on the loan is scheduled
to
be made. For balloons it should be the balloon date.
|
1/1/2020
|
|
|
Original
Loan To Value Ratio
|
Ratio
representing the Original Loan Balance to the Original Appraised
Value
|
75.69
|
|
|
Original
Appraised Value
|
Appraised
value at time of application.
|
550562
|
|
|
Original
FICO score
|
Credit
bureau score obtained at application.
|
654
|
|
|
Prepayment
Penalty Type
|
Code/literal
to identify characteristics of penalty. Example: 6 MO INT ON 80%
XXXX,
5/4/3/2/1, 3%.
|
6
Months Interest on 80%
|
|
|
Prepayment
Term
|
Original
number of months that penalty was imposed.
|
24
|
|
|
Negative
Amortization Flag
|
Code/literal
to identify loans where negative amortization is allowed. Example:
Y=neg
am allowed, N=no neg am allowed.
|
Y
|
|
|
Negam
Percent Cap
|
Maximum
percentage of original balance that a loan may negatively amortize
by.
(25%, etc.)
|
25
|
|
|
MI
Provider
|
Name
or code for company providing private mortgage insurance.
|
Radian
|
|
|
MI
Coverage Percentage
|
Percentage
of insurance provided by PMI agreement.
|
12
|
|
EXH.
9-14
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
MI
Certificate ID
|
Unique
ID to identify PMI insurance certificate.
|
5829471
|
|
|
ARM
Loans
|
|||
|
ARM
Flag
|
A
'Y' or 'N' to indicate if a loan is an Adjustable rate
mortgage
|
Y
|
|
|
Arm
Index Description
|
Code/literal
used to identify the specific underlying index that adjustable rate
loans
will reset from. (6 Months Libor, 1 Yr CMT, etc)
|
6ML
|
|
|
Margin
|
The
spread above the index value that a new rate on adjustable rate loans
will
be set to; subject to caps and rounding. (stated in
percent)
|
3.65
|
|
|
ARM
Rounding Feature
|
Code/literal
used to identify the method to be used when computing new rate on
adjustable rate loans. (stated in percent)
|
0.125
|
|
|
Lookback
Days
|
The
actual number of days prior to the Next Rate Reset Date that the
underlying index will be referenced for determining new rate on adjustable
rate loans. Examples: 45, 30, 0.
|
45
|
|
|
First
Payment Reset Date
|
The
first date that any payment reset was/is scheduled to occur. Typically
is
one month after First Rate Reset Date.
|
3/1/2007
|
|
|
First
Rate Reset Date
|
The
first date that any rate reset was/is scheduled to occur. Typically
is one
month prior to First Payment Reset Date.
|
2/1/2007
|
|
|
Initial
Rate Reset Period
|
Number
of payments to be made prior to the first rate reset. For a typical
5/1
ARM, this would contain the value 60.
|
60
|
|
EXH.
9-15
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Rate
Reset Period
|
Number
of payments to be made between rate changes following the initial
rate
reset period. For a typical 5/1 ARM this would contain the value
12.
|
12
|
|
|
Initial
Payment Reset Period
|
Number
of payments to be made prior to the first payment reset. For a typical
5/1
ARM, this would contain the value 60. For non hybrid loans this would
equal the Payment Reset Period.
|
60
|
|
|
Payment
Reset Period
|
Number
of payments to be made between payment changes following the Initial
Payment Reset Period. For a typical 5/1 ARM this would contain the
value
12.
|
12
|
|
|
Initial
Rate Adjustment Cap
|
Maximum
rate change allowed on First Rate Reset Date.
|
3
|
|
|
Next
Rate Reset Date
|
The
next date that any rate reset is scheduled to occur. Typically is
one
month prior to Next Payment Reset Date.
|
||
|
Next
Payment Reset Date
|
The
next date that any payment reset is scheduled to occur. Typically
is one
month after Next Rate Reset Date.
|
||
|
Rate
Adjustment Cap
|
Maximum
rate increase allowed subsequent to First Rate Reset Date.
|
1
|
|
|
Periodic
Floor
|
Maximum
rate decrease allowed subsequent to First Rate Reset Date.
|
0
|
|
|
Lifetime
Caps
|
The
maximum amount the rate is allowed to increase by over the life of
the
loan.
|
6
|
|
|
Lifetime
Floor
|
The
minimum amount the rate is allowed to increase by over the life of
the
loan.
|
0
|
|
EXH.
9-16
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Max
Rate
|
The
absolute maximum rate allowed for the loan.
|
11.65
|
|
|
Min
Rate
|
The
absolute minimum rate allowed for the loan.
|
3.65
|
|
|
Payment
Cap
|
Periodic
Cap for monthly principal & interest payment increase. Example
7.5%.
|
6.5
|
|
EXH.
9-17
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Static
Information
|
|||
|
Loan
Number
|
Loan
Number currently being used to service this loan.
|
123456789
|
|
|
Prior
Loan Number
|
Prior
Loan Number (if any). If servicing has transferred this should contain
the
Loan Number used by the previous servicer.
|
987654321
|
|
|
Custodian
File Number
|
Custodian
ID used to file documents. This can be the custodian's only id or
a
category used to arrange documents into proper pools.
|
1de457
|
|
|
Custodian
Loan Number
|
Custodian
secondary ID used to file documents. Often this is used in conjunction
with Custodian File Number to uniquely identify loans.
|
365wer5
|
|
|
Min
Mers #
|
Mers
Certificate Number
|
Y
|
|
|
GS
Loan Number
|
The
Loan number that Xxxxxxx Sachs assigns to the loan
|
Leave
Blank
|
|
|
Origination
Date
|
Origination
Date shown on loan documents.
|
12/25/2004
|
|
|
Originator
|
The
name of the company that originated the loan
|
Xxxxx
Fargo
|
|
|
Origination
Source
|
Broker,
etc.
|
Broker
|
|
|
Loan
Purchase Date
|
The
date that Goldman purchased the loan
|
11/25/2004
|
|
|
HOEPA
Status
|
Y\N
|
||
|
Type
of Ownership
|
like
fee simple, lease-hold
|
Lease-Hold
|
|
|
Documentation
Type
|
Full,
Alt, No Ration, None, XXXX,XXXX
|
Full
|
|
EXH.
9-18
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Income
Verification Flag
|
Was
the Borrower's income verified or stated
|
Y
|
|
|
Asset
Verification
|
Were
the Borrower's Assets verified
|
Y
|
|
|
Employment
Verification
|
Was
the Borrower's employment verified
|
Y
|
|
|
Purpose
of Loan
|
Code/literal
used to identify the original purpose of the loan. ( case-out refi,
refi,
purchase, construction, etc)
|
Purchase
|
|
|
Cash-out
Amount
|
The
Amount that the borrower removed from the loan
|
00000
|
|
|
Xxxxx
Xxxx To Income Ratio
|
Front
End Ratio at time of application. Mortgage debt to borrower
income.
|
56.23
|
|
|
Debt
To Income Ratio
|
Back
End Ratio at time of application. Total debt to borrower
income.
|
68.25
|
|
|
Product
Type
|
Generic
category code used internally to describe loan type
|
6MO
|
|
|
Product
Description
|
Generic
category description
|
6
month arm - IO
|
|
|
Loan
Type
|
Code/literal
to identify the loan type. (Conventional [w/] PMI , Jumbo, FHA, VA,
etc)
|
Conventional
- PMI
|
|
|
Property
Type
|
Code/literal
that identifies the type of property securing the loan. ( 2 Family,
PUD)
|
PUD
|
|
|
Occupancy
Type
|
Occupancy
status at time of application. (2nd home, owner occupied, vacant,
etc)
|
OO
|
|
|
Interest
Calculation Method
|
The
basis on which interest is calculated. ( arrears, 360, 365, advance,
etc)
|
30/360
|
|
|
Draw
Term
|
The
term that the borrower can draw from the line of credit stated in
months
|
120
|
|
|
Section32
Flag
|
Indicates
if the loan may violate predatory lending laws (Y/N)
|
Y
|
|
EXH.
9-19
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Property
Address
|
Property
address, not billing address.
|
000
Xxxxxxx Xxxx
|
|
|
Property
City
|
Property
city.
|
Toronto
|
|
|
Property
State
|
Property
state.
|
NY
|
|
|
Property
Zip
|
Property
zip.
|
10004
|
|
|
Condo/PUD
Project Name
|
Name
of the development.
|
Xxxxx
Xxxxxxx
|
|
|
Number
of Units
|
The
number of units for the property (1,2,3,4) ( should correspond to
the
property type)
|
2
|
|
|
Year-Built
|
Date
property was built
|
1978
|
|
|
Lien
Position
|
Number
used to identify the lien position in effect at the time of application.
Example: 1, 2, 3, O (other)
|
1
|
|
|
Original
Balance
|
Original
amount of loan granted to borrower. In the case of construction loans
this
should be the full amount extended on which the monthly payments
are
based.
|
250000.00
|
|
|
Original
Senior Lien Amount
|
Amount
of senior lien outstanding when loan was originated.
|
0.00
|
|
|
Original
Junior Lien Amount
|
Amount
of junior liens outstanding when loan was originated
|
32000.00
|
|
|
Original
Interest Rate
|
Original
contractual interest rate for loan. ( provide all decimal
places)
|
8.515
|
|
|
Original
Scheduled P&I
|
Original
Scheduled Principal and Interest payment
|
564.12
|
|
|
Original
PITI
|
Original
Scheduled Principal, Interest, Tax and Insurance payment
|
725.12
|
|
|
First
Payment Date
|
This
is the contractual date when the first payment was to be made.
|
2/1/2005
|
|
EXH.
9-20
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Original
Maturity Date
|
This
is the contractual date when the last payment on the loan is scheduled
to
be made. For balloons it should be the balloon date.
|
1/1/2020
|
|
|
Original
Term
|
The
number of months from First Payment Date to Original Maturity Date
inclusive.
|
180
|
|
|
Payment
Frequency
|
Monthly,
bi-weekly, etc.
|
monthly
|
|
|
Original
Amortization Term
|
Original
Amortization Term of the loan in number of months. For fully amortizing
loans would be the same as Original Term. For balloon loans this
would
exceed Original Term. For IO loans this would have no
value.
|
360
|
|
|
Original
Loan To Value Ratio
|
Ratio
representing the Original Loan Balance to the Original Appraised
Value
|
75.69
|
|
|
Original
Combined Loan To Value Ratio
|
For
Junior liens, Ratio representing the sum of the Original Loan Balance
plus
Original Senior Lien Amount to the Original Appraised Value
|
85.23
|
|
|
Original
Appraised Value
|
Appraised
value at time of application.
|
550562
|
|
|
Original
Appraisal Date
|
Date
of the original Appraisal
|
12/1/2004
|
|
|
Original
Appraisal Firm
|
Name
of the Appraisal firm
|
Union
Appraisals
|
|
|
Appraisal
Form Type
|
Form
1040 U, 2005
|
||
|
Appraisal
Review Type
|
Desk
Top, Drive By
|
||
|
Original
Purchase Price
|
Price
paid for home.
|
360000
|
|
|
Purchase
BPO
|
BPO
at the time of Purchase by GS.
|
580000
|
|
|
Purchase
BPO Date
|
Date
of the Purchase BPO
|
12/1/2004
|
|
|
Original
FICO score
|
Credit
bureau score obtained at application.
|
654
|
|
EXH.
9-21
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Credit
Score Company
|
Experian
|
||
|
Original
Credit Grade
|
B+
|
||
|
First
Time Borrower Flag
|
N
|
||
|
Flood
Insurance Indicator
|
Does
the property have flood insurance
|
Y
|
|
|
Prepayment
Flag
|
Code/Flag
to determine if loan was originated with a prepayment penalty. (Y
/
N)
|
Y
|
|
|
Prepayment
Penalty Type
|
Code/literal
to identify characteristics of penalty. Example: 6 MO INT ON 80%
XXXX,
5/4/3/2/1, 3%.
|
6
Months Interest on 80%
|
|
|
Prepayment
Term
|
Original
number of months that penalty was imposed.
|
24
|
|
|
Negative
Amortization Flag
|
Code/literal
to identify loans where negative amortization is allowed. Example:
Y=neg
am allowed, N=no neg am allowed.
|
Y
|
|
|
Negam
Percent Cap
|
Maximum
percentage of original balance that a loan may negatively amortize
by.
(25%, etc.)
|
25
|
|
|
MI
Provider
|
Name
or code for company providing private mortgage insurance.
|
Radian
|
|
|
MI
Coverage Percentage
|
Percentage
of insurance provided by PMI agreement.
|
12
|
|
|
MI
Certificate ID
|
Unique
ID to identify PMI insurance certificate.
|
5829471
|
|
|
Lender
Paid Insurance Flag
|
Indicates
if Lender pays PMI Insurance
|
Y
|
|
|
Lender
Paid Insurance Fee
|
stated
in percent
|
0.25
|
|
|
Assumable
Flag
|
Indicates
if loan is assumable
|
Y
|
|
|
Buydown
Flag
|
Indicates
if the loan has a buydown option (Y/N)
|
Y
|
|
EXH.
9-22
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Balloon
Term
|
Number
of months to Balloon Date
|
180
|
|
|
Balloon
Flag
|
Code/literal
to identify balloon loans. Example: Y, N.
|
Y
|
|
|
IO
Loans
|
|||
|
IO
Term
|
Indicates
the term in months of the interest only period
|
24
|
|
|
IO
Flag
|
Indicates
if the loan is an interest only loan for a period of the
loan
|
Y
|
|
|
Daily
Simple Interest Flag
|
Flag
to identify loans where interest is due is calculated based on the
date
that each payment is actually received.
|
Y
|
|
|
Convertible
Loans
|
|||
|
Convertible
Flag
|
Indicates
that the borrower is allowed to convert an ARM mortgage to a Fixed
Rate
mortgage
|
Y
|
|
|
Convertible
Term
|
The
specified period at which a borrower can choose to exercise convertible
rights
|
24
|
|
|
Conversion
Expiration Date
|
Expiration
date of conversion provisions
|
12/25/2006
|
|
|
Conversion
Fee
|
Fee
for converting loan from ARM to Fixed
|
||
|
Conversion
Formula
|
|||
|
Convert
Lookback
|
The
period designated for lookback calculation stated in days.
|
45
|
|
|
Convert
Index
|
Index
used for the conversion
|
||
|
Convert
Margin
|
|||
|
Convert
Cap Down
|
|||
|
Convert
Cap Up
|
|||
|
Convert
Lifetime Cap Down
|
|||
|
Convert
Lifetime Cap Up
|
|||
|
Convert
Max PI CAP ( Up )
|
|||
EXH.
9-23
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Convert
Max PI CAP ( Down )
|
|||
|
ARM
Loans
|
|||
|
ARM
Flag
|
A
'Y' or 'N' to indicate if a loan is an Adjustable rate
mortgage
|
Y
|
|
|
Arm
Index Description
|
Code/literal
used to identify the specific underlying index that adjustable rate
loans
will reset from. (6 Months Libor, 1 Yr CMT, etc)
|
6ML
|
|
|
Margin
|
The
spread above the index value that a new rate on adjustable rate loans
will
be set to; subject to caps and rounding. (stated in
percent)
|
3.65
|
|
|
ARM
Rounding Feature
|
Code/literal
used to identify the method to be used when computing new rate on
adjustable rate loans. (stated in percent)
|
0.125
|
|
|
Lookback
Days
|
The
actual number of days prior to the Next Rate Reset Date that the
underlying index will be referenced for determining new rate on adjustable
rate loans. Examples: 45, 30, 0.
|
45
|
|
|
First
Payment Reset Date
|
The
first date that any payment reset was/is scheduled to occur. Typically
is
one month after First Rate Reset Date.
|
3/1/2007
|
|
|
First
Rate Reset Date
|
The
first date that any rate reset was/is scheduled to occur. Typically
is one
month prior to First Payment Reset Date.
|
2/1/2007
|
|
|
Initial
Rate Reset Period
|
Number
of payments to be made prior to the first rate reset. For a typical
5/1
ARM, this would contain the value 60.
|
60
|
|
EXH.
9-24
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
Rate
Reset Period
|
Number
of payments to be made between rate changes following the initial
rate
reset period. For a typical 5/1 ARM this would contain the value
12.
|
12
|
|
|
Initial
Payment Reset Period
|
Number
of payments to be made prior to the first payment reset. For a typical
5/1
ARM, this would contain the value 60. For non hybrid loans this would
equal the Payment Reset Period.
|
60
|
|
|
Payment
Reset Period
|
Number
of payments to be made between payment changes following the Initial
Payment Reset Period. For a typical 5/1 ARM this would contain the
value
12.
|
12
|
|
|
Initial
Rate Adjustment Cap
|
Maximum
rate change allowed on First Rate Reset Date.
|
3
|
|
|
First
Cap Adjustment Down
|
0
|
||
|
Rate
Adjustment Cap
|
Maximum
rate increase allowed subsequent to First Rate Reset Date.
|
1
|
|
|
Periodic
Floor
|
Maximum
rate decrease allowed subsequent to First Rate Reset Date.
|
0
|
|
|
Lifetime
Caps
|
The
maximum amount the rate is allowed to increase by over the life of
the
loan.
|
6
|
|
|
Lifetime
Floor
|
The
minimum amount the rate is allowed to increase by over the life of
the
loan.
|
0
|
|
|
Max
Rate
|
The
absolute maximum rate allowed for the loan.
|
11.65
|
|
|
Min
Rate
|
The
absolute minimum rate allowed for the loan.
|
3.65
|
|
|
Payment
Cap
|
Periodic
Cap for monthly principal & interest payment increase. Example
7.5%.
|
6.5
|
|
EXH.
9-25
|
GS
Data Dictionary
|
|||
|
Information
Type
|
Field
Name
|
Description
|
Example
|
|
General
Information
|
|||
|
Borrower
Name Last Name
|
Borrower's
Last Name
|
Xxx
|
|
|
Borrower
Name First Name
|
Borrower's
First Name
|
Xxx
|
|
|
CoBorrower
Name Last Name
|
Co-Borrower's
Last Name
|
Xxx
|
|
|
CoBorrower
Name First Name
|
Co-Borrower's
First Name
|
Xxxx
|
|
|
Borrower
Social Security Number/TIN
|
Eleven
character ID. Example: 000-00-0000.
|
000-00-0000
|
|
|
CoBorrower
Social Security Number/TIN
|
Eleven
character ID. Example: 000-00-0000.
|
000-00-0000
|
|
|
Self
Employment Flag
|
Y
|
||
|
Borrower
Age
|
52
|
||
|
Co-Age
|
56
|
||
|
Borrower
Race
|
|||
|
Co-Race
|
|||
|
Borrower
Gender
|
Male
|
||
|
Co-Gender
|
Female
|
||
|
Income
|
182564
|
||
|
Co-Income
|
256453
|
||
|
Co_credit
Score
|
841
|
||
|
Borrower
Ethnicity
|
|||
|
Co-Ethnicity
|
|||
EXH.
9-26
EXHIBIT
10
FORM
OF
SELLER’S OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of ________________ [COMPANY], a [state] [federally] chartered institution
organized under the laws of the [state of ____________] [United States] (the
“Company”)
and
further as follows:
1. Attached
hereto as Exhibit 1
is a
true, correct and complete copy of the charter of the Company which is in full
force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit 2
is a
true, correct and complete copy of the bylaws of the Company which are in effect
on the date hereof and which have been in effect without amendment, waiver,
rescission or modification since ___________.
3. Attached
hereto as Exhibit 3
is an
original certificate of good standing of the Company issued within ten days
of the date hereof, and no event has occurred since the date thereof which
would
impair such standing.
4. Attached
hereto as Exhibit 4
is a
true, correct and complete copy of the corporate resolutions of the Board of
Directors of the Company authorizing the Company to execute and deliver the
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as
of May 1, 2006, by and between Xxxxxxx Sachs Mortgage Company (the “Purchaser”)
and
the Company (the “Sale
and
Servicing Agreement”)
[and
to endorse the Mortgage Notes and execute the Assignments of Mortgages by
original [or facsimile] signature], and such resolutions are in effect on the
date hereof and have been in effect without amendment, waiver, rescission or
modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Sale and
Servicing Agreement, the sale of the mortgage loans or the consummation of
the
transactions contemplated by the agreements; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Sale and Servicing Agreement conflicts or will conflict with or
results or will result in a breach of or constitutes or will constitute a
default under the charter or by-laws of the Company, the terms of any indenture
or other agreement or instrument to which the Company is a party or by which
it
is bound or to which it is subject, or any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
EXH.
10-1
7. To
the
best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or which would draw into
question the validity of the Sale and Servicing Agreement, or the mortgage
loans
or of any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the ability
of the Company to perform under the terms of the Sale and Servicing
Agreement.
8. Each
person listed on Exhibit 5
attached
hereto who, as an officer or representative of the Company, signed (a) the
Sale and Servicing Agreement and (b) any other document delivered or on the
date hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is
now, a duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her name on
Exhibit 5,
and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Sale and Servicing Agreement.
EXH.
10-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:
|
________________________ | |
|
By:
|
________________________ | |
|
Name:
|
________________________ | |
|
[Seal]
|
Title: [Vice]
President
|
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
|
________________________ | |
|
By:
|
________________________ | |
|
Name:
|
________________________ | |
|
Title:
|
________________________ | |
|
[Assistant]
Secretary
|
EXH.
10-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
||||
|
|
EXH.
10-4
EXHIBIT
11
FORM
OF
OPINION OF COUNSEL TO SELLER
(date)
Xxxxxxx
Xxxxx Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to American Home
Mortgage Corp. (the “Company”),
with
respect to certain matters in connection with the sale by the Company of the
Mortgage Loans pursuant to that certain Second Amended and Restated Mortgage
Loan Sale and Servicing Agreement, by and between the Company and Xxxxxxx Sachs
Mortgage Company (the “Purchaser”),
dated
as of May 1, 2006, (the “Agreement”)
which
sale is in the form of whole loans. Capitalized terms not otherwise defined
herein have the meanings set forth in the Agreement.
[We]
[I]
have examined the following documents:
1. the
Agreement;
2. the
form
of Assignment of Mortgage;
3. the
form
of endorsement of the Mortgage Notes; and
4. such
other documents, records and papers as we have deemed necessary and relevant
as
a basis for this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Agreement. [We]
[I] have assumed the authenticity of all documents submitted to [us] [me] as
originals, the genuineness of all signatures, the legal capacity of natural
persons and the conformity to the originals of all documents.
Based
upon the foregoing, it is [our] [my] opinion that:
1. The
Company is a [type of entity] duly organized, validly existing and in good
standing under the laws of the [United States] and is qualified to transact
business in, and is in good standing under, the laws of [the state of
incorporation/formation].
EXH.
11-1
2. The
Company has the power to engage in the transactions contemplated by the
Agreement and all requisite power, authority and legal right to execute and
deliver the Agreement and to perform and observe the terms and conditions of
the
Agreement.
3. The
Agreement has been duly authorized, executed and delivered by the Company,
and
is a legal, valid and binding agreement enforceable in accordance with its
respective terms against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors and subject
to
the application of the rules of equity, including those respecting the
availability of specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or with the Purchaser’s
ownership of the Mortgage Loans.
4. The
Company has been duly authorized to allow any of its officers to execute any
and
all documents by original signature in order to complete the transactions
contemplated by the Agreement.
5. The
Company has been duly authorized to allow any of its officers to execute by
original [or facsimile] signature the endorsements to the Mortgage Notes and
the
Assignments of Mortgages, and the original [or facsimile] signature of the
officer of the Company executing the endorsements to the Mortgage Notes and
the
Assignments of Mortgages represents the legal and valid signature of said
officer of the Company.
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 Agreement
and the sale of the Mortgage Loans by the Company or the consummation of the
transactions contemplated by the 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 Agreement conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or to
which it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body
to
which the Company is subject or by which it is bound.
8. There
is
no action, suit, proceeding or investigation pending or, to the best of [our]
[my] knowledge, threatened against the Company which, in [our] [my] judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Company or in any material impairment of the right or ability
of
the Company to carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would draw into question
the validity of the Agreement or the Mortgage Loans or of any action taken
or to
be taken in connection with the transactions contemplated thereby, or which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Agreement.
XXX.
00-0
0. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Agreement is sufficient to fully transfer to the Purchaser all right, title
and
interest of the Company thereto as noteholder and mortgagee.
10. The
Mortgages have been duly assigned and the Mortgage Notes have been duly endorsed
as provided in the Agreement. The Assignments of Mortgage are in recordable
form, except for the insertion of the name of the assignee, and upon the name
of
the assignee being inserted, are acceptable for recording under the laws of
the
state where each related Mortgaged Property is located. The endorsement of
the
Mortgage Notes, the delivery to the Purchaser, or its designee, of the
Assignments of Mortgage, and the delivery of the original endorsed Mortgage
Notes to the Purchaser, or its designee, are sufficient to permit the Purchaser
to avail itself of all protection available under applicable law against the
claims of any present or future creditors of the Company, and are sufficient
to
prevent any other sale, transfer, assignment, pledge or hypothecation of the
Mortgages and the Mortgage Notes by the Company from being
enforceable.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of the date of this opinion.
Very
truly yours,
______________________________________
[Name]
______________________________________
[Assistant]
General Counsel
EXH.
11-3
EXHIBIT
12
FORM
OF
SECURITY RELEASE CERTIFICATION
___________________,
_____
________________________
________________________
________________________
|
Attention:
|
___________________________
|
|
___________________________
|
|
| Re: Notice of Sale and Release of Collateral |
Dear
Sirs:
This
letter serves as notice that AMERICAN HOME MORTGAGE CORP., a corporation
organized pursuant to the laws of the state of New York (the “Company”)
has
committed to sell to Xxxxxxx Xxxxx Mortgage Company under a Second Amended
and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of May 1, 2006,
certain mortgage loans originated by the Company. The Company warrants that
the
mortgage loans to be sold to Xxxxxxx Sachs Mortgage Company are in addition
to
and beyond any collateral required to secure advances made by you to the
Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company shall not be used as additional or substitute collateral for
advances made by [____________]. Xxxxxxx Sachs Mortgage Company understands
that
the balance of the Company’s mortgage loan portfolio may be used as collateral
or additional collateral for advances made by [___________], and confirms that
it has no interest therein.
EXH.
12-1
Execution
of this letter by [___________] shall constitute a full and complete release
of
any security interest, claim, or lien which [___________] may have against
the
mortgage loans to be sold to Xxxxxxx Xxxxx Mortgage Company.
Very
truly yours,
_________________________________________
By:_______________________________________
Name:_____________________________________
Title:______________________________________
Date:______________________________________
Acknowledged
and approved:
_________________________
By:__________________________________________
Name:________________________________________
Title:_________________________________________
Date:_________________________________________
EXH.
12-2
EXHIBIT
13
FORM
OF
SECURITY RELEASE CERTIFICATION
I.
Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule A (the “Mortgage
Loans”)
to be
purchased by Xxxxxxx Sachs Mortgage Company from the company named on the next
page pursuant to that certain Second Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of May 1, 2006 and certifies that all
notes, mortgages, assignments and other documents in its possession relating
to
such Mortgage Loans have been delivered and released to the Company or its
designees, as of the date and time of the sale of such Mortgage Loans to Xxxxxxx
Xxxxx Mortgage Company. Such release shall be effective automatically without
any further action by any party upon payment in one or more installments, in
immediately available funds, of $_____________, in accordance with the wire
instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
EXH.
13-1
II.
Certification
of Release
The
Company named below hereby certifies to Xxxxxxx Sachs Mortgage Company that,
as
of the date and time of the sale of the above-mentioned Mortgage Loans to
Xxxxxxx Xxxxx Mortgage Company the security interests in the Mortgage Loans
released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
___________________________
By:___________________________
Title:________________________
Date:_________________________
EXH.
13-2
EXHIBIT
14
FORM
OF
ASSIGNMENT AND CONVEYANCE
On
this
___ day of __________, ____, American Home Mortgage Corp. (“Seller”),
as
(i) the Seller under that certain Purchase Price and Terms Agreement, dated
as of ___________, _____ (the “PPTA”),
(ii) the Seller under that certain Second Amended and Restated Mortgage
Loan Sale and Servicing Agreement, dated as of May 1, 2006 (the “Sale
and Servicing Agreement”)
and,
together with the PPTA, the “Agreements”)
does
hereby sell, transfer, assign, set over and convey to Xxxxxxx Sachs Mortgage
Company (“Purchaser”)
as the
Purchaser under the Agreements, without recourse, but subject to the terms
of
the Agreements, all right, title and interest of, in and to the Mortgage Loans
listed on the Mortgage Loan Schedule attached hereto as Exhibit A
(the
“Mortgage
Loans”),
together with the Mortgage Files and all rights and obligations arising under
the documents contained therein. Each Mortgage Loan subject to the Agreements
was underwritten in accordance with, and conforms to, the Underwriting
Guidelines attached hereto as Exhibit C.
Pursuant to Section 6 of the Sale and Servicing Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased
as set forth in the Custodial Agreement. The contents of each Servicing File
required to be retained by the Servicer to service the Mortgage Loans pursuant
to the Sale and Servicing Agreement and thus not delivered to the Purchaser
are
and shall be held in trust by the Servicer in its capacity as Servicer for
the
benefit of the Purchaser as the owner thereof. The Servicer’s possession of any
portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to
the
Sale and Servicing Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
Mortgage and the contents of the Mortgage File and Servicing File is vested
in
the Purchaser and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of the
Seller or the Servicer shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by the Servicer at the will of the Purchaser
in such custodial capacity only.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B
hereto.
In
accordance with Section 6 of the Sale and Servicing Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A
attached
hereto. Notwithstanding the foregoing the Purchaser does not waive any rights
or
remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Sale and Servicing Agreement.
[Signature
Page Follows]
XXX.
00-0
AMERICAN
HOME MORTGAGE CORP.
By:
_____________________________________
Name:
Title:
Name:
Title:
Accepted
and Agreed:
XXXXXXX
XXXXX MORTGAGE COMPANY
By:
XXXXXXX SACHS REAL ESTATE FUNDING CORP.,
a New York corporation, as General Partner
a New York corporation, as General Partner
By:
____________________________________
Name:
Title:
Name:
Title:
EXH.
14-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
XXX.
00-0
XXXXXXX
X
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL
CHARACTERISTICS
OF EACH MORTGAGE LOAN PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than
$_________; (2) an origination date earlier than _ months prior to the
related Cut-off Date; (3) an LTV of greater than _____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than __%.
Each Mortgage Loan has a Mortgage Interest Rate of at least ___% per annum
and
an outstanding principal balance of less than $_________. Each Adjustable Rate
Mortgage Loan has an Index of [_______].
EXH.
14-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
EXH.
14-5
EXHIBIT
15
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __, 20__]
(“Agreement”),
among
Xxxxxxx Xxxxx Mortgage Company (“Assignor”),
[____________________] (“Assignee”),
AMERICAN HOME MORTGAGE CORP. (the “Company”)
and
AMERICAN HOME MORTGAGE SERVICING, INC. (the
“Servicer”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the
“Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Second Amended and Restated
Mortgage Loan Sale and Servicing Agreement (the “Sale
and Servicing Agreement”),
dated
as of May 1, 2006, by and among the Assignor, as purchaser (the “Purchaser”),
the
Company, as seller and the Servicer, as servicer, solely insofar as the Sale
and
Servicing Agreement relates to the Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to any mortgage loans subject to the Sale and Servicing
Agreement which are not the Mortgage Loans set forth on the Mortgage Loan
Schedule and are not the subject of this Agreement.
Recognition
of the Company and the Servicer
2. From
and
after the date hereof (the “Securitization
Closing Date”),
each
of the Company and the Servicer shall and does hereby recognize that the
Assignee will transfer the Mortgage Loans and assign its rights under the Sale
and Servicing Agreement (solely to the extent set forth herein) and this
Agreement to [__________________] (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of [__________,
200_] (the “Pooling
Agreement”),
among
the Assignee, the Assignor, [___________________], as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the “Trustee”),
[____________________], as master servicer (including its successors in interest
and any successor servicer under the Pooling Agreement, the “Master
Servicer”).
Each
of the Company and the Servicer hereby acknowledges and agrees that from and
after the date hereof (i) the Trust will be the owner of the Mortgage
Loans, (ii) each of the Company and the Servicer shall look solely to the
Trust for performance of any obligations of the Assignor insofar as they relate
to the Mortgage Loans, (iii) the Trust (including the Trustee and the
Master Servicer acting on the Trust’s behalf) shall have all the rights and
remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the Sale and Servicing Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in
Section 6 of the Sale and Servicing Agreement, and shall be entitled to
enforce all of the obligations of the Company or the Servicer thereunder insofar
as they relate to the Mortgage Loans, and (iv) all references to the
Purchaser, the Custodian or the Bailee under the Sale and Servicing Agreement
insofar as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust (including the Trustee and the Master Servicer acting on the Trust’s
behalf). Neither the Company nor the Servicer nor the Assignor shall amend
or
agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Sale and Servicing Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or the
Company’s or the Servicer’s performance under the Sale and Servicing Agreement
with respect to the Mortgage Loans without the prior written consent of the
Trustee.
XXX.
00-0
Representations
and Warranties of the Company and the Servicer
3. Each
of
the Company and the Servicer warrants and represents to the Assignor, the
Assignee and the Trust as of the date hereof that:
(a) Each
of
the Company and the Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) Each
of
the Company and the Servicer has full power and authority to execute, deliver
and perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Sale and Servicing Agreement.
The
execution by the Company and the Servicer of this Agreement is in the ordinary
course of the Company’s and the Servicer’s business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of the
Company’s or the Servicer’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company or the Servicer is now
a
party or by which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or the Servicer
or
their property is subject. The execution, delivery and performance by the
Company and the Servicer of this Agreement have been duly authorized by all
necessary corporate action on part of the Company and the Servicer. This
Agreement has been duly executed and delivered by the Company and the Servicer,
and, upon the due authorization, execution and delivery by the Assignor and
the
Assignee, will constitute the valid and legally binding obligation of the
Company and the Servicer, enforceable against the Company and the Servicer
in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company or the Servicer in connection with the execution, delivery or
performance by the Company and the Servicer of this Agreement; and
XXX.
00-0
(x) There
is
no action, suit, proceeding or investigation pending or, to the best of the
Company’s and the Servicer’s knowledge, threatened against the Company or the
Servicer, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Sale and Servicing
Agreement, or which, either in any one instance or in the aggregate, would
result in any material adverse change in the ability of the Company or the
Servicer to perform its obligations under this Agreement or the Sale and
Servicing Agreement, and the Company and the Servicer are solvent.
4. Pursuant
to Section 15 of the Sale and Servicing Agreement, each of the Company and
the Servicer hereby represents and warrants, for the benefit of the Assignor,
the Assignee and the Trust, that the representations and warranties set forth
in
Section 7.01 and Section 7.02 of the Sale and Servicing Agreement are
true and correct as of the date hereof as if such representations and warranties
were made on the date hereof unless otherwise specifically stated in such
representations and warranties.
Remedies
for Breach of Representations and Warranties
5. Each
of
the Company and the Servicer hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee
and
the Master Servicer acting on the Trust’s behalf) in connection with any breach
of the representations and warranties made by the Company or the Servicer set
forth in Sections 3 and 4 hereof shall be as set forth in Subsection 7.03
of the
Sale and Servicing Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth
therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. 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, with the prior written consent of the
Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the parties hereto and (ii) the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf). Any entity into which Assignor,
Assignee, Company or Servicer may be merged or consolidated shall, without
the
requirement for any further writing, be deemed Assignor, Assignee, Company
or
Servicer, respectively, hereunder.
9. Each
of
this Agreement and the Sale and Servicing Agreement shall survive the conveyance
of the Mortgage Loans and the assignment of the Sale and Servicing Agreement
(to
the extent assigned hereunder) by Assignor to Assignee and by Assignee to the
Trust and nothing contained herein shall supersede or amend the terms of the
Sale and Servicing Agreement.
XXX.
00-0
00. 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.
11. In
the
event that any provision of this Agreement conflicts with any provision of
the
Sale and Servicing Agreement with respect to the Mortgage Loans, the terms
of
this Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Sale and
Servicing Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
AMERICAN
HOME MORTGAGE CORP.
By:
_________________________________________
Name: ___________________________________
Its: ______________________________________
Name: ___________________________________
Its: ______________________________________
AMERICAN
HOME MORTGAGE SERVICING, INC.
By:
_________________________________________
Name: ___________________________________
Its: ______________________________________
Name: ___________________________________
Its: ______________________________________
XXXXXXX
XXXXX MORTGAGE COMPANY
BY:
XXXXXXX SACHS REAL ESTATE
FUNDING CORP., a New York
Corporation, as General Partner
FUNDING CORP., a New York
Corporation, as General Partner
By:
_________________________________________
Name: ___________________________________
Its: ______________________________________
Name: ___________________________________
Its: ______________________________________
XXX.
00-0
[ASSIGNEE]
By:
_________________________________________
Name: ___________________________________
Its: ______________________________________
Name: ___________________________________
Its: ______________________________________
EXH.
15-5
EXHIBIT
16
FORM
OF
ANNUAL CERTIFICATION
Re:
The
[ ]
agreement dated as of [ ], 200[ ] (the “Agreement”),
among
[IDENTIFY PARTIES]
[IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
1. I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance
Statement”),
the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange
Act”)
and
Item 1122 of Regulation AB (the “Servicing
Assessment”),
the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the “Attestation
Report”),
and
all servicing reports, officer’s certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the
“Company
Servicing Information”);
2. Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
3. Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
4. I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
16-1
5. The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or 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:
Name:
Title:
16-2
EXHIBIT
17
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
XXX.
00-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
XXX.
00-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
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1122(d)(4)(iv)
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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.
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1122(d)(4)(v)
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The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
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1122(d)(4)(vi)
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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.
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XXX.
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Xxxxxxxxx
Xxxxxxxx
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Applicable
Servicing
Criteria
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Reference
|
Criteria
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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.
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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).
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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.
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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.
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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.
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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.
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XXX.
00-0
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Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
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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.
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1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
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1122(d)(4)(xv)
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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.
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[NAME
OF
COMPANY] [NAME OF SUBSERVICER]
Date:
______________________________________
By:
________________________________________
Name:
Title:
Name:
Title:
XXX.
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