ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.10a
EXECUTION
VERSION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated as of April 1, 2007, is entered into among Xxxxxx Xxxxxxx Capital I Inc.,
a Delaware corporation (the “Depositor”), Xxxxxx Xxxxxxx Mortgage Capital
Inc. (“MSMCI”), National City Mortgage Co. as seller (in such capacity,
the “Seller”) and servicer (in such capacity, the “Servicer”), and
acknowledged by LaSalle Bank National Association, as trustee (the “Trustee”) of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-7AX (the “Trust”), and Xxxxx Fargo Bank,
National Association, as master servicer (or any successor master servicer,
the
“Master Servicer”).
RECITALS
WHEREAS
MSMCI, the Seller and the Servicer have entered into a certain Fourth Amended
and Restated Master Seller’s Warranties and Servicing Agreement, dated as of
July 1, 2006 (as amended or modified to the date hereof, the
“Agreement”), pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the terms of the Agreements and the Servicer has agreed to service
such Mortgage Loans;
WHEREAS
the Depositor has agreed, on the terms and conditions contained herein, to
purchase from MSMCI certain of the Mortgage Loans (the “Specified Mortgage
Loans”) which are subject to the provisions of the Agreement and are listed
on the mortgage loan schedule attached as Schedule A hereto (the “Specified
Mortgage Loan Schedule”); and
WHEREAS
the Trustee, on behalf of the Trust, has agreed, on the terms and conditions
contained herein, to purchase from the Depositor the Specified Mortgage
Loans;
NOW,
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
1. Assignment
and Assumption
(a) On
and of the date hereof, MSMCI hereby sells, assigns and transfers to the
Depositor all of its right, title and interest in the Specified Mortgage Loans
and all rights and obligations related thereto as provided under the Agreement
to the extent relating to the Specified Mortgage Loans, the Depositor hereby
accepts such assignment from MSMCI (the “First Assignment and
Assumption”), and the Seller hereby acknowledges the First Assignment and
Assumption.
MSMCI
specifically reserves and does not assign to the Depositor hereunder any and
all
right, title and interest in, to and under and all obligations of MSMCI with
respect to any Mortgage Loans subject to the Agreements which are not the
Specified Mortgage Loans.
(b) On
and of the date hereof, immediately after giving effect to the First Assignment
and Assumption, the Depositor hereby sells, assigns and transfers to the
Trustee, on behalf of the Trust, all of its right, title and interest in the
Specified Mortgage Loans and all rights and obligations related thereto as
provided under the Agreements to the extent relating to
the
Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby
accepts such assignment from the Depositor (the “Second Assignment and
Assumption”), and the Seller hereby acknowledges the Second Assignment and
Assumption.
(c) On
and as of the date hereof, MSMCI represents and warrants to the Depositor and
the Trustee that MSMCI has not taken any action that would serve to impair
or
encumber the respective ownership interests of the Depositor and the Trustee
in
the Specified Mortgage Loans since the date of MSMCI’s acquisition of the
Specified Mortgage Loans.
2. Recognition
of Trustee
(a) From
and after the date hereof, both MSMCI and the Seller shall note the transfer
of
the Specified Mortgage Loans to the Trustee, in their respective books and
records and shall recognize the Trustee, on behalf of the Trust, as of the
date
hereof, as the owner of the Specified Mortgage Loans, and Servicer shall service
the Specified Mortgage Loans for the benefit of the Trust pursuant to the
Agreement, the terms of which are incorporated herein by reference. It is the
intention of the Seller, the Servicer, the Depositor, the Trustee and MSMCI
that
this Assignment shall be binding upon and inure to the benefit of the Depositor,
the Trustee and MSMCI and their respective successors and assigns.
(b) Without
in any way limiting the foregoing, the parties confirm that this Assignment
includes the rights relating to amendments or waivers under the
Agreement. Accordingly, the right of MSMCI to consent to any
amendment of the Agreement and its rights concerning waivers as set forth in
Section 12.02 of the Agreement shall be exercisable, to the extent any such
amendment or waiver affects the Specified Mortgage Loans or any of the rights
under the Agreement with respect thereto (other than the servicing of the
Specified Mortgage Loans, which shall be enforced by the Master Servicer) by
the
Trustee as assignee of MSMCI.
(c) It
is expressly understood and agreed by the parties hereto that (i) this
Assignment is executed and delivered by LaSalle Bank National Association,
not
individually or personally but solely on behalf of the Trust, as the assignee,
in the exercise of the powers and authority conferred and vested in it, as
Trustee, pursuant to the Pooling Agreement, (ii) each of the representations,
undertakings and agreements herein made on the part of assignee is made and
intended not as personal representations, undertakings and agreements by LaSalle
Bank National Association but is made and intended for the purpose of binding
only the Trust, (iii) nothing herein contained shall be construed as creating
any liability for LaSalle Bank National Association, individually or personally,
to perform any covenant (either express or implied) contained herein, (iv)
under
no circumstances shall LaSalle Bank National Association be personally liable
for the payment of any indebtedness or expenses of the Trust, or be liable
for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under this Assignment and (v) all recourse
for
any payment liability or other obligation of the assignee shall be had solely
to
the assets of the Trust.
3. Representations
and Warranties
(a) The
Depositor represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Seller or MSMCI other than those contained in the Agreement or this
Assignment.
2
(b) Each
of the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
(c) Each
of the Depositor, MSMCI, Servicer and Seller represents and warrants that this
Assignment has been duly authorized, executed and delivered by it and (assuming
due authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, except as such enforcement may be limited
by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(d) The
Seller hereby makes, as of the Closing Date (as defined in the Pooling and
Servicing Agreement referred to below), the representations and warranties
set
forth in Schedule B hereto, with respect to each of the Specified Mortgage
Loans
that were sold by it under the Agreement, to and for the benefit of the
Depositor, the Trustee and the Trust.
4. The
Servicer hereby acknowledges that Xxxxx Fargo Bank, National Association has
been appointed as the Master Servicer of the Specified Mortgage Loans pursuant
to the Pooling and Servicing Agreement and, therefore, has the right to enforce
all obligations of the Servicer under the Agreement. Such rights will include,
without limitation, the right to terminate the Servicer under the Agreement
upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Servicer under the Agreement, the right
to receive all monthly reports and other data required to be delivered by the
Servicer under the Agreement, the right to examine the books and records of
the
Servicer, indemnification rights and the right to exercise certain rights of
consent and approval relating to actions taken by MSMCI. The Servicer shall
make
all distributions under the Agreement to the Master Servicer by wire transfer
of
immediately available funds to:
Xxxxx
Fargo Bank, National Association
ABA
Number: 000-000-000
Account
Name: Corporate Trust Clearing
Account
number: 0000000000
For
further credit to: [●], MSM 2007-7AX
The
Servicer shall deliver all reports required to be delivered under the Agreement
to the Master Servicer at the following address:
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager, MSM 2007-7AX
Office
Number: (000) 000-0000
Telecopier:
(000) 000-0000
5. Amendments
to the Agreements
The
parties to this Assignment hereby agree to amend each Agreement as
follows:
(a) The
definition of “Eligible Account” is hereby inserted into Section
1.01:
3
“Eligible
Account: Any of (i) an account
or
accounts maintained with a federal or state chartered depository institution
or
trust company, the short-term unsecured debt obligations of which (or, in the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such holding company)
have the highest short-term ratings of Xxxxx’x or Fitch and one of the two
highest short-term ratings of S&P, if S&P is a Rating Agency, at the
time any amounts are held on deposit therein, or (ii) an account or accounts
in
a depository institution or trust company in which such accounts are insured
by
the FDIC (to the limits established by the FDIC) and the uninsured deposits
in
which accounts are otherwise secured such that, as evidenced by an Opinion
of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or
a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds
that is superior
to claims of any other depositors or creditors of the depository institution
or
trust company in which such account is maintained, or (iii) a trust account
or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its fiduciary
capacity or (iv) any other account acceptable to each Rating
Agency.”
(b) With
respect to the Specified Mortgage Loans, “Permitted Investments” shall have the
meaning of such term as defined in the Pooling and Servicing
Agreement.
(c) The
definition of “Remittance Date” in Section 1 of the Agreement is hereby amended
and restated in its entirety as follows:
“Remittance
Date: No later than 1:00 p.m. New York time on the 18th day of
each month (or, if such 18th day is not a Business Day, the following Business
Day).”
(d) The
definition of “Servicing Fee Rate” in Section 1 of the Agreement is hereby
amended and restated in its entirety as follows:
“Servicing
Fee Rate”: With respect to the adjustable rate Mortgage Loans,
[0.375%] per annum.”
(e) The
second and third sentences of the first paragraph of Section 4.04 of the
Agreement are amended and restated in their entirety as follows:
“The
Custodial Account shall be an Eligible Account established with a Qualified
Depository acceptable to the Purchaser. Any funds deposited in the
Custodial Account shall at all times be fully insured.”
(f) The
word “and” is deleted from the end of Section 4.05(vii) of the Agreement, the
word “and” is added at the end of Section 4.05(vii) of the Agreement and the
following paragraph is hereby incorporated into the Agreement as new Section
4.05(ix):
“to
reimburse itself for unreimbursed Servicing Advances and for unreimbursed
Monthly Advances, in accordance with Section 5.03, to the extent that such
amounts are nonrecoverable by the Servicer pursuant to subclause (ii) or (iii)
above, provided that the Mortgage Loan for which such advances were made is
not
required to be repurchased by the Seller pursuant to
Section 3.03.”
(g) The
second paragraph of Section 4.16 of the Agreement is hereby amended and restated
in its entirety as follows:
4
“With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Purchaser, or its designee. The Trustee’s name shall
be placed on the title to such REO Property solely as the Trustee hereunder
and
not in its individual capacity. The Servicer shall ensure that the
title to such REO Property references the Agreement and the Purchaser’s capacity
thereunder. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve such REO Property in the same manner and to such extent
as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Purchaser,
or its designee, rent the same, or any part thereof, as the Servicer deems
to be
in the best interest of the Purchaser, or its designee, for the period prior
to
the sale of such REO Property. The Servicer shall prepare for and
deliver to the Purchaser, or its designee, a statement with respect to each
REO
Property that has been rented showing the aggregate rental income received
and
all expenses incurred in connection with the maintenance of such REO Property
at
such times as is necessary to enable the Purchaser, or its designee, to comply
with the reporting requirements of the REMIC Provisions. The net
monthly rental income, if any, from such REO Property shall be deposited in
the
Certificate Account no later than the close of business on each Determination
Date. The Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the cancellation
of indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required, and delivering
the
same to the Purchaser, or its designee, for filing.
In
the
event that the Purchaser, or its designee, acquires any Mortgaged Property
as
aforesaid or otherwise in connection with a default or imminent default on
a
Mortgage Loan, the Servicer shall dispose of such Mortgaged Property as soon
as
practicable in a manner that maximizes the Liquidation Proceeds thereof, but
in
no event later than three years after its acquisition by the Purchaser, or
its
designee. In that event, the Purchaser, or its designee, shall have
been supplied with an Opinion of Counsel to the effect that the holding by
the
Purchaser, or its designee, of such Mortgaged Property subsequent to a
three-year period, if applicable, will not result in the imposition of taxes
on
“prohibited transactions” of any REMIC as defined in section 860F of the Code or
cause any REMIC to fail to qualify as a REMIC at any time, the Purchaser, or
its
designee, may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) after the expiration of such
three-year period. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Purchaser, or its designee,
shall be rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Purchaser, or its designee, in
such
a manner or pursuant to any terms that would (i) cause such Mortgaged Property
to fail to qualify as “foreclosure property” within the meaning of section
860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Servicer
has
agreed to indemnify and hold harmless the Purchaser, or its designee, with
respect to the imposition of any such taxes.”
(h) The
second paragraph of Section 5.01 of the Agreement is hereby amended and restated
in its entirety as follows:
“With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Company shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Custodial Account by the Company on the date such late payment
is made and shall cover the period commencing with such Business Day and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
5
succeeding
Remittance Date. The payment by the Company of any such interest shall not
be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Company.”
(i) The
first sentence of Section 5.02 of the Agreement is hereby amended and restated
in its entirety as follows:
“Not
later than the 5th Business
Day of
each month (or if such 5th day is
not a
Business Day, the Business Day next succeeding such 5th day), the
Company
shall furnish to the Master Servicer in electronic form mortgage loan level
data
as mutually agreed upon by the Servicer and the Master Servicer and the monthly
reports substantially in the form of Exhibit II attached hereto with respect
to
the Mortgage Loans and the period from but including the first day of the
preceding calendar month through but excluding the first day of such
month.”
(j) Section
5.03 of the Agreement is hereby amended and restated in its entirety as
follows:
“Monthly
Advances by Company. On the Business Day immediately preceding
each Remittance Date, the Company shall either (a) deposit in the Custodial
Account from its own funds an amount equal to the principal and interest portion
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 or which were deferred pursuant to Section 4.01,
(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 Section 5.03, used by the Servicer in discharge of any such Monthly
Advance or (c) make Monthly Advances in the form of any combination of (a)
or (b) aggregating the total amount of Monthly Advances to be
made. The Company’s obligation to make such Monthly Advances as to
any Mortgage Loan will continue through the last Monthly Payment due prior
to
the payment in full of the Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan; provided, however, that such
obligation shall cease if the Servicer, in its good faith judgment, determines
that a Monthly Advance would not be recoverable pursuant to
Section 4.05(ii). The determination by the Servicer that a Monthly 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.”
(k) The
word “or” is added at the end of Section 10.01(ix) of the Agreement and the
following paragraph is hereby incorporated into the Agreement as new Section
10.01(x):
“(f) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 13.04 or 13.05 which failure continues unremedied
for
a period of fourteen (14) 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 any party to this Agreement or by any master servicer responsible
for master servicing the Mortgage Loans pursuant to a securitization of such
Mortgage Loans;”
(l) With
respect to the Specified Mortgage Loans, Section 11.02 of the Agreement is
hereby deleted.
(m) The
following paragraph is hereby incorporated into the Agreement as new Section
12.14:
“Third
Party Beneficiary. For purposes of this Agreement, including but
not limited to Subsection 13.04 and Subsection 13.05, any Master Servicer shall
be considered a third party beneficiary
6
to
this
Agreement entitled to all the rights and benefits accruing to any Master
Servicer herein as if it were a direct party to this Agreement.”
(n) Section
13.03(d) of the Agreement is hereby amended and restated in its entirety as
follows:
“(d) For
the purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, each Seller and the Company
shall (or shall cause each Subservicer and Third-Party Originator to) (i)
provide prompt notice to the Purchaser, any Master Servicer and any Depositor
in
writing of (A) any material litigation or governmental proceedings involving
the
Company, any Subservicer or any Third-Party Originator, (B) any affiliations
or
relationships that develop following the closing date of a Securitization
Transaction between the Company, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, (C) any Event of Default under
the
terms of this Agreement or any Reconstitution Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the
Company, and (E) the Company’s entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Company’s obligations under
this Agreement or any Reconstitution Agreement and (ii) provide to the Purchaser
and any Depositor a description of such proceedings, affiliations or
relationships.”
(o) Section
13.03(f) of the Agreement is hereby amended and restated in its entirety as
follows:
“(f) In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Securitization Transaction that includes any of the Mortgage
Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
7
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(g) The
Company shall provide to the Purchaser, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports, and such other
information related to the Company or any Subservicer or the Company or such
Subservicer’s performance hereunder.”
(p) Section
13.05(a)(iv) of the Agreement is hereby amended and restated in its entirety
as
follows:
“(iv) deliver,
and cause each subservicer and subcontractor described in clause (iii) above
to
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, signed
by
an appropriate officer of the Company, in the form attached hereto as Exhibit
7.”
(q) Section
13.06(a) of the Agreement is hereby amended to add Sections 13.03(f) and
13.03(g) as provisions that the Subservicers must comply with to same extent
as
if such Subservicer were the Company.
(r) The
last sentence of the last paragraph of Section 13.06 of the Agreement is amended
to require the Company to cause any Subservicer or Subcontractor to provide
any
assessment of compliance and attestation but also any other certifications
required to delivered under this Section 13.06.
(s) Section
13.07(a)(ii) of the Agreement is hereby amended and restated in its entirety
as
follows:
“(ii) any
breach by the Seller or Company under, or any failure by any Seller, the
Company, any Subservicer, any Subcontractor or any Third-Party Originator to
deliver any information, report, certification, accountants’ letter or other
material when and as required, under this Article XIII, including any failure
by
the Company to identify pursuant to Section 13.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;”
(t) The
word “or” is struck at the end of Section 13.07(a)(ii) of the Agreement and the
following is inserted to Section 13.07(a) of the Agreement:
“(iv) negligence,
bad faith or willful misconduct of the Company in connection with its
performance under this Article XIII.
8
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.”
(u) The
following parenthetical is inserted directly before the proviso in the last
sentence of the first paragraph of Section 13.07(b)(i) of the
Agreement:
(v) “(and
if the Company is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable to the Master
Servicer for such Securitization Transaction)”
(w) Written
notice provided in compliance with Sections 13.03(d), (e) or (f) of the
Agreement shall be substantially in the form of Exhibit I to this
Assignment.
(x) Monthly
Statements provided under
Section 5.02 of the Agreement will be provided in the form of Exhibit II to
this
Assignment.
(y) Exhibit
M to the Agreement is hereby deleted and replaced with Exhibit III to this
Assignment.
(z) Exhibit
N to the Agreement is hereby deleted and replaced with Exhibit IV to this
Assignment.
(aa) A
copy of all assessments, attestations, reports and certifications required
to be
delivered by the Servicer under this Assignment and the Agreement shall be
delivered to the Master Servicer by the date(s) specified herein or therein,
and
where such documents are required to be addressed to any party, such addresses
shall include the Master Servicer and the Master Servicer shall be entitled
to
rely on such documents.
6. Continuing
Effect
Except
as
contemplated hereby, the Agreement shall remain in full force and effect in
accordance with its terms.
7. Governing
Law
This
Assignment and the rights and obligations hereunder shall be governed by and
construed in accordance with the internal laws of the State of New
York.
8. Notices
9
Any
notices or other communications permitted or required under the Agreement to
be
made to the Depositor, MSMCI, the Master Servicer, the Seller, the Servicer
and
the Trustee shall be made in accordance with the terms of the Agreement and
shall be sent to the Depositor, the Master Servicer and Trustee as
follows:
In
the
case of MSMCI:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-7AX
With
a
copy to:
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel’s Office
In
the
case of the Depositor:
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-7AX
In
the
case of the Trustee:
LaSalle
Bank National Association
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services MSM 2007-7AX
In
the
case of the Seller and the Servicer:
National
City Mortgage
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxx 00000
Attention: Xxxx
Xxxx Xxxxxxxx
In
the
case of the Master Servicer:
10
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Services Manager, MSM 2007-7AX
or
to
such other address as may hereafter be furnished by the Depositor and the
Trustee to the parties in accordance with the provisions of the
Agreement.
9. Ratification
Except
as
modified and expressly amended by this Assignment, the Agreement is in all
respects ratified and confirmed, and all terms, provisions and conditions
thereof shall be and remain in full force and effect.
10. Counterparts
This
Assignment may be executed in counterparts, each of which when so executed
shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
11. Definitions
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Agreement.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | |||
|
By:
|
/s/ Xxxxxxx Xxx | |
Name: Xxxxxxx Xxx | |||
Title: Vice President | |||
XXXXXX XXXXXXX CAPITAL I INC. | |||
|
By:
|
/s/ Xxxxxxx Xxx | |
Name: Xxxxxxx Xxx | |||
Title: Vice President | |||
NATIONAL CITY MORTGAGE CO. | |||
|
By:
|
/s/ Xxxx Xxxx Xxxxxxxx | |
Name: Xxxx Xxxx Xxxxxxxx | |||
Title: Vice President | |||
Acknowledged
and Agreed:
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as Master Servicer
By:
/s/
Xxxxx X. Xxxxxx
------------------------------------------------------------
Name:
Xxxxx Xxxxxx
Title:
Vice President
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-7AX
By:
/s/
Xxxx Xxxxx
-----------------------------------------------------------
Name:
Xxxx Xxxxx
Title:
Vice President
EXECUTION
VERSION
EXHIBIT
I
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as [Securities Administrator and Master Servicer]
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Client
Services Manager – MSM 2007-7AX - SEC REPORT PROCESSING
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 9.01(e)
[iv][v][vi] of the Master Seller’s Warranties and Servicing Agreement, dated as
of April 1, 2006, as amended by the Assignment, Assumption and Recognition
Agreement dated as of April 1, 2007 among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Servicer, Xxxxx Fargo
Bank, National Association, as Master Servicer, and LaSalle Bank National
Association as Trustee. The Undersigned hereby notifies you that
certain events have come to our attention that [will][may] need to be disclosed
on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this
notification should be directed to [ ], phone
number: [ ]; email address [ ]
[NAME OF PARTY] as [role]
By:
__________________
Name:
Title:
Exhibit
IIA: Standard
File
Layout – Delinquency Reporting
*The
column/header names in bold are the minimum
fields Xxxxx Fargo must receive from every Servicer
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
||||
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR
|
|
|||||
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|||||
CLIENT_NBR
|
Servicer
Client Number
|
||||||
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|||||
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||||||
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||||||
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|||||
PROP_STATE
|
The
state where the property located.
|
|
|||||
PROP_ZIP
|
Zip
code where the property is located.
|
|
|||||
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|||||
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|||||
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|||||
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|||||
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|||||
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|||||
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|||||
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|||||
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||||||
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|||||
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|||||
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|||||
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|||||
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|||||
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|||||
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|||||
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
||||
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|||||
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|||||
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
||||
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|||||
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
||||
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|||||
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|||||
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|||||
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|||||
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|||||
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|||||
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
||||
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
||||
If
applicable:
|
|
|
|||||
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||||||
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a
loan. Code indicates the reason why the loan is in
default for this cycle.
|
||||||
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|||||
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|||||
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|||||
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||||
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|||||
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
||||
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|||||
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
||||
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|||||
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
||||
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|||||
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||||
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|||||
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
||||
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|||||
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
||||
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|||||
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|||||
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
MOTION_FOR_RELIEF_DATE |
The
date the Motion for Relief was filed
|
10
|
MM/DD/YYYY
|
|||||
FRCLSR_BID_AMT |
The
foreclosure sale bid amount
|
11
|
No
commas(,) or dollar signs ($)
|
|||||
FRCLSR_SALE_TYPE |
The
foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
|
|
|
|||||
REO_PROCEEDS |
The
net proceeds from the sale of the REO property.
|
|
No
commas(,) or dollar signs ($)
|
|||||
BPO_DATE |
The
date the BPO was done.
|
|
|
|||||
CURRENT_FICO |
The
current FICO score
|
|
|
|||||
HAZARD_CLAIM_FILED_DATE |
The
date the Hazard Claim was filed with the Hazard Insurance
Company.
|
10
|
MM/DD/YYYY
|
|||||
HAZARD_CLAIM_AMT |
The
amount of the Hazard Insurance Claim filed.
|
11
|
No
commas(,) or dollar signs ($)
|
HAZARD_CLAIM_PAID_DATE |
The
date the Hazard Insurance Company disbursed the claim
payment.
|
10
|
MM/DD/YYYY
|
|||||
HAZARD_CLAIM_PAID_AMT |
The
amount the Hazard Insurance Company paid on the claim.
|
11
|
No
commas(,) or dollar signs ($)
|
|||||
ACTION_CODE |
Indicates
loan status
|
Number
|
||||||
NOD_DATE |
|
|
MM/DD/YYYY
|
|||||
NOI_DATE |
|
|
MM/DD/YYYY
|
|||||
ACTUAL_PAYMENT_PLAN_START_DATE |
|
|
MM/DD/YYYY
|
|||||
ACTUAL_PAYMENT_ PLAN_END_DATE |
|
|
|
|||||
ACTUAL_REO_START_DATE |
|
|
MM/DD/YYYY
|
|||||
REO_SALES_PRICE |
|
|
Number
|
|||||
REALIZED_LOSS/GAIN |
As
defined in the Servicing Agreement
|
|
Number
|
Exhibit
2:Standard
File Codes –
Delinquency Reporting
The
Loss Mit Type field should show the approved Loss
Mitigation Code as follows:
|
·
|
ASUM-
|
Approved
Assumption
|
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
·
|
CO-
|
Charge
Off
|
|
·
|
DIL-
|
Deed-in-Lieu
|
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
|
·
|
MOD-
|
Loan
Modification
|
|
·
|
PRE-
|
Pre-Sale
|
|
·
|
SS-
|
Short
Sale
|
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply
Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The
Occupant Code field should show the current status of
the property code as follows:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
The
Property Condition field should show the last reported
condition of the property as follows:
|
·
|
Damaged
|
|
·
|
Excellent
|
|
·
|
Fair
|
|
·
|
Gone
|
|
·
|
Good
|
|
·
|
Poor
|
|
·
|
Special
Hazard
|
|
·
|
Unknown
|
Exhibit
IIB:Standard
File Codes –
Delinquency Reporting, Continued
The
FNMA Delinquent Reason Code field should show the Reason
for Delinquency as follows:
Delinquency
Code
|
Delinquency
Description
|
001
|
FNMA-Death
of principal mortgagor
|
002
|
FNMA-Illness
of principal mortgagor
|
003
|
FNMA-Illness
of mortgagor’s family member
|
004
|
FNMA-Death
of mortgagor’s family member
|
005
|
FNMA-Marital
difficulties
|
006
|
FNMA-Curtailment
of income
|
007
|
FNMA-Excessive
Obligation
|
008
|
FNMA-Abandonment
of property
|
009
|
FNMA-Distant
employee transfer
|
011
|
FNMA-Property
problem
|
012
|
FNMA-Inability
to sell property
|
013
|
FNMA-Inability
to rent property
|
014
|
FNMA-Military
Service
|
015
|
FNMA-Other
|
016
|
FNMA-Unemployment
|
017
|
FNMA-Business
failure
|
019
|
FNMA-Casualty
loss
|
022
|
FNMA-Energy
environment costs
|
023
|
FNMA-Servicing
problems
|
026
|
FNMA-Payment
adjustment
|
027
|
FNMA-Payment
dispute
|
029
|
FNMA-Transfer
of ownership pending
|
030
|
FNMA-Fraud
|
031
|
FNMA-Unable
to contact borrower
|
INC
|
FNMA-Incarceration
|
Exhibit
IIB:Standard
File Codes –
Delinquency Reporting, Continued
The
FNMA Delinquent Status Code field should show the Status
of Default as follows:
Status
Code
|
Status
Description
|
09
|
Forbearance
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
24
|
Government
Seizure
|
26
|
Refinance
|
27
|
Assumption
|
28
|
Modification
|
29
|
Charge-Off
|
30
|
Third
Party Sale
|
31
|
Probate
|
32
|
Military
Indulgence
|
43
|
Foreclosure
Started
|
44
|
Deed-in-Lieu
Started
|
49
|
Assignment
Completed
|
61
|
Second
Lien Considerations
|
62
|
Veteran’s
Affairs-No Bid
|
63
|
Veteran’s
Affairs-Refund
|
64
|
Veteran’s
Affairs-Buydown
|
65
|
Chapter
7 Bankruptcy
|
66
|
Chapter
11 Bankruptcy
|
67
|
Chapter
13 Bankruptcy
|
EXECUTION
VERSION
Exhibit
IIC:Standard
File Layout – Master
Servicing
Standard
Loan Level File Layout – Master Servicing
|
|
|
|
|
|
|
|
||
|
|
|
||
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
Each
file requires the following fields:
|
|
|
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 20 digits
|
20
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Exhibit
1:Continued
|
Standard
Loan Level File Layout
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Plus
the following applicable fields:
|
|
|
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Actual/Actual
Loans.
|
||||
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BREACH_FLAG
|
Flag
to indicate if the repurchase of a loan is due to a breach of
Representations and Warranties
|
Y=Breach
N=NO
Breach
Let
blank if N/A
|
1
|
![](https://www.sec.gov/Archives/edgar/data/1397057/000090514807006105/monthlyreport.jpg)
![](https://www.sec.gov/Archives/edgar/data/1397057/000090514807006105/delreport.jpg)
![](https://www.sec.gov/Archives/edgar/data/1397057/000090514807006105/regabsummary.jpg)
EXECUTION
VERSION
Exhibit
IID
: Calculation
of
Realized Loss/Gain Form 332– Instruction Sheet
NOTE: Do
not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not
being passed until the following month. The Servicer is responsible
to remit all funds pending loss approval and /or resolution of any disputed
items.
(a)
(b) The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
|
4-12.
|
Complete
as applicable. Required
documentation:
|
* For
taxes and insurance advances – see page 2 of 332 form - breakdown required
showing period of coverage, base tax, interest, penalty. Advances
prior to default require evidence of servicer efforts to recover
advances.
* For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
* Other
expenses - copies of corporate advance history showing all
payments
* REO
repairs> $1500 require explanation
* REO
repairs>$3000 require evidence of at least 2 bids.
* Short
Sale or Charge Off require P&L supporting the decision and WFB’s
approved
Servicing Officer certification
* Unusual
or extraordinary items may require further documentation.
|
13.
|
The
total of lines 1 through 12.
|
(c) Credits:
|
14-21.
|
Complete
as applicable. Required
documentation:
|
*
Copy of
the HUD 1 from the REO sale. If a 3rd Party Sale,
bid
instructions and Escrow
Agent / Attorney Letter of Proceeds Breakdown.
* Copy
of EOB for any MI or gov't guarantee
* All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note:
|
For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line
(18b)
for Part B/Supplemental proceeds.
|
|
Total
Realized Loss (or Amount of Any
Gain)
|
|
23.
|
The
total derived from
subtracting line 22 from 13. If the amount represents a
realized gain, show the amount in parenthesis
( ).
|
Exhibit
IIE: Calculation
of
Realized Loss/Gain Form 332
Prepared
by: __________________ Date: _______________
Phone: ______________________ Email
Address:_____________________
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
|
3rd
Party
Sale
|
Short
Sale
|
Charge
Off
|
Was
this loan granted a Bankruptcy deficiency or
cramdown
|
Yes
|
No
|
If
“Yes”, provide deficiency or cramdown amount
_______________________________
|
Liquidation
and Acquisition Expenses:
|
|||
(1) Actual
Unpaid Principal Balance of Mortgage Loan
|
$
_______________
|
(1)
|
|
(2) Interest
accrued at Net Rate
|
_______________
|
(2)
|
|
(3) Accrued
Servicing Fees
|
_______________
|
(3)
|
|
(4) Attorney's
Fees
|
_______________
|
(4)
|
|
(5) Taxes
(see page 2)
|
_______________
|
(5)
|
|
(6) Property
Maintenance
|
_______________
|
(6)
|
|
(7) MI/Hazard
Insurance Premiums (see page 2)
|
_______________
|
(7)
|
|
(8) Utility
Expenses
|
_______________
|
(8)
|
|
(9) Appraisal/BPO
|
_______________
|
(9)
|
|
(10) Property
Inspections
|
_______________
|
(10)
|
|
(11) FC
Costs/Other Legal Expenses
|
_______________
|
(11)
|
|
(12) Other
(itemize)
|
_______________
|
(12)
|
|
Cash
for Keys__________________________
|
_______________
|
(12)
|
HOA/Condo
Fees_______________________
|
_______________
|
(12)
|
|
______________________________________
|
_______________
|
(12)
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
Credits:
|
|
||
(14) Escrow
Balance
|
$
_______________
|
(14)
|
|
(15) HIP
Refund
|
_______________
|
(15)
|
|
(16) Rental
Receipts
|
_______________
|
(16)
|
|
(17) Hazard
Loss Proceeds
|
_______________
|
(17)
|
|
(18) Primary
Mortgage Insurance / Gov’t Insurance
|
_______________
|
(18a)
|
|
HUD
Part A
|
|||
_______________
|
(18b)
|
||
HUD
Part B
|
|||
(19) Pool
Insurance Proceeds
|
_______________
|
(19)
|
|
(20) Proceeds
from Sale of Acquired Property
|
_______________
|
(20)
|
|
(21) Other
(itemize)
|
_______________
|
(21)
|
|
_________________________________________
|
_______________
|
(21)
|
|
|
|||
Total
Credits
|
$
_______________
|
(22)
|
|
Total
Realized Loss (or Amount of Gain)
|
$
_______________
|
(23)
|
|
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
EXHIBIT
III
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of
[ ],
200[ ] (the “Agreement”), among
[IDENTIFY
PARTIES]
I,
________________________________, the _____________________ of Wachovia Mortgage
Corporation, 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 and identified as the responsibility
of the Company on Exhibit B to the Regulation AB Compliance Addendum to the
Agreement (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
(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 and Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: | |||
|
By:
|
||
Name | |||
Title | |||
EXHIBIT
IV
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
|
|||
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
1122(d)(1)(i)
|
|||
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
||
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
|||
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
Servicing
Criteria
|
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.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign financial
institution
that
meets the requirements of Rule 13k-1 (b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded
so as to prevent unauthorized access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction
agreements;
(C) reviewed and approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number
of
days
specified in the transaction agreements.
|
X
|
|
Investor
Remittances and Reporting
|
|||
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide information calculated
in
accordance with the terms specified in the transaction agreements;
(C) are
filed with the Commission as required by its rules and regulations;
and
(D) agree with investors’ or the trustee’s records as to
the total unpaid principal balance and number of mortgage loans serviced
by the Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
|||
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance
with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and
concluded
in accordance with the timeframes or other requirements established
by the
transaction agreements.
|
X
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction agreements,
and
describe
the entity’s activities in monitoring delinquent mortgage loans including,
for example, phone calls, letters and payment rescheduling plans
in cases
where delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(
d)( 4 )(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(
d)( 4 )(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s mortgage loan documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest
on
such
funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned
to
the obligor within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified
in
the transaction agreements.
|
X
|
|
1122(
d)( 4 )(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30
calendar
days prior to these dates, or such other number of days specified
in the
transaction agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
[NATIONAL
CITY MORTGAGE CO.]
[NAME
OF SUBSERVICER]
|
|||
Date: | |||
|
By:
|
||
Name | |||
Title | |||
EXHIBIT
II
Exhibit
M
– Form of Monthly Remittance Report with
Instructions
SCHEDULE
A
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
Schedule
B
Representations
and Warranties
With
respect to the Representations and
Warranties on this Schedule B, capitalized terms used but not defined in this
Assignment shall have the meanings ascribed thereto in the
Agreement.
Representations
and Warranties Respecting the Company. The Seller represents,
warrants and covenants to MSMCI, the Trustee, MSC and Master Servicer as of
the
Closing Date:
(a) Due
Organization and Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
Ohio and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state where
a
Mortgaged Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the Company,
and in any event the Company is in compliance with the laws of any such state
to
the extent necessary to ensure the enforceability of the related Mortgage Loan
and the servicing of such Mortgage Loan in accordance with the terms of this
Agreement; the Company has the full corporate power and authority to hold each
Mortgage Loan, to sell each Mortgage Loan and to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Company and the consummation of
the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the
Company; and all requisite corporate action has been taken by the Company to
make this Agreement valid and binding upon the Company in accordance with its
terms;
(b) Ordinary
Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Company, and the transfer, assignment and conveyance of the Mortgage Notes
and
the Mortgages by the Company pursuant to this Agreement are not subject to
the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(c) No
Conflicts. Neither the execution and delivery of this Agreement,
the acquisition of the Mortgage Loans by the Company, the sale of the Mortgage
Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Company’s charter or by-laws or any legal restriction or any
agreement or instrument to which the Company is now a party or by which it
is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject, or impair
the ability of the Purchaser to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans;
(d) Ability
to Service. The Company is an approved seller/servicer of
conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage
Loans. The Company is in good standing to sell mortgage loans to and
service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred,
including but not limited to a change in insurance coverage, which would make
the Company unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility
requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac;
(e) Reasonable
Servicing Fee. The Company acknowledges and agrees that the
Servicing Fee, as calculated at the Servicing Fee Rate, represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Company, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement.
(f) Ability
to Perform. The Company does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Company is solvent and will not be
rendered insolvent by the consummation of the transactions contemplated
hereby. The sale of the Mortgage Loans is not undertaken to hinder,
delay or defraud any of the Company’s creditors;
(g) No
Litigation Pending. There is no action, suit, proceeding or
investigation pending or to the best of the Company’s knowledge threatened
against the Company which, either in any one instance or in the aggregate,
may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Company, or in any material impairment
of
the right or ability of the Company to carry on its business substantially
as
now conducted, or in any material liability on the part of the Company, or
which
would draw into question the validity of this Agreement or the Mortgage Loans
or
of any action taken or to be taken in connection with the obligations of the
Company contemplated herein, or which would be likely to impair materially
the
ability of the Company to perform under the terms of this
Agreement;
(h) No
Consent Required. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company with
this Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the related Closing Date;
(i) Selection
Process. The Mortgage Loans were selected from among the
outstanding fixed or adjustable rate one- to four-family mortgage loans in
the
Company’s portfolio at the related Closing Date as to which the representations
and warranties set forth in Section 3.02 could be made and such
selection was not made in a manner so as to affect adversely the interests
of
the Purchaser;
(j) Pool
Characteristics. With respect to each Mortgage Loan Package, the
Mortgage Loan characteristics set forth on the related Mortgage Loan Schedule
attached to the related Assignment and Conveyance are true and
complete;
(k) No
Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or any Reconstitution Agreement or in connection with the transactions
contemplated hereby including any Securitization Transaction or Whole Loan
Transfer contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(l) Sale
Treatment. The disposition of the Mortgage Loans shall be
treated as a sale on the books and records of the Company. The
Company has determined that the disposition of the Mortgage Loans pursuant
to
this Agreement will be afforded sale treatment for accounting and tax
purposes. The Company shall maintain a complete set of books and
records for each Mortgage Loan, which shall be clearly marked to reflect the
ownership of such Mortgage Loan;
(m) Financial
Statements. The Company has delivered to the Purchaser financial
statements as to its last three complete fiscal years and any later quarter
ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent
results of operations and changes in financial position at the end of each
such
period of the Company and its subsidiaries and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as set forth in the notes thereto. There
has been no change in the business, operations, financial condition, properties
or assets of the Company since the date of the Company’s financial statements
that would have a material adverse effect on its ability to perform its
obligations under this Agreement. The Company has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(n) No
Brokers’ Fees. The Company has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation in connection with the sale of the Mortgage Loans;
(o) Origination. The
Company’s decision to originate any mortgage loan or to deny any mortgage loan
application is an independent decision based upon Company’s Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision
to purchase, or not to purchase, or the price Purchaser may offer to pay for,
any such mortgage loan, if originated;
(p) Fair
Consideration. The consideration received by the Company upon
the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage
Loans;
(q) No
Bulk Transfer. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Company pursuant to this Agreement
are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(r) Ability
to Perform; Solvency. The Company does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Company is solvent and the
sale of the Mortgage Loans will not cause the Company to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Company’s creditors;
(s) Anti-Money
Laundering Laws. The Company has complied with all applicable
anti-money laundering laws, executive orders and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the “Anti-Money
Laundering Laws”); the Company 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; and
(t) Officer’s
Certificate The Officer’s Certificate provided by the Company
with respect to the initial Closing Date will remain true and correct with
respect to any subsequent Closing Date.
Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Specified Mortgage Loan, the Company represents, warrants and covenants
to
MSMCI, the Trustee, MSC and the Master Servicer as of the Closing
Date:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for each Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan
has been 30 or more days delinquent at any time in the 12 months
preceding the related Closing Date. The first Monthly Payment shall
be made with respect to the Mortgage Loan on its Due Date, all in accordance
with the terms of the related Mortgage Note. The first two Monthly
Payments after the relevant Cut-off Date shall be made with respect to the
Mortgage Loan within thirty (30) days of the related Due Date, all in
accordance with the terms of the related Mortgage Note;
(c) No
Outstanding Charges. There are no defaults in complying with the
terms of the Mortgages, and all taxes, governmental assessments, insurance
premiums, ground rents, leasehold payments, water, sewer and municipal charges,
leasehold payments or ground rents which previously became due and owing have
been paid, or an escrow of funds has been established in an amount sufficient
to
pay for every such item which remains unpaid and which has been assessed but
is
not yet due and payable. The Company has not advanced funds, or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage
Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is greater, to the day
which precedes by one month the Due Date of the first installment of principal
and interest;
(d) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, except
by a
written instrument which has been recorded, if necessary to protect the
interests of the Purchaser and which has been delivered to the
Custodian. The substance of any such waiver, alteration or
modification has been approved by FHA or VA, as applicable, or the issuer of
any
related PMI Policy and the title insurer, to the extent required by the policy,
and its terms are reflected on the related Mortgage Loan Schedule. No
instrument of waiver, alteration or modification has been executed, and 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 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, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at
the
time the Mortgage Loan was originated;
(f) Hazard
Insurance. All buildings or other improvements upon the
Mortgaged Property are insured by a generally acceptable insurer against loss
by
fire, hazards of extended coverage and such other hazards as are customary
in
the area where the Mortgaged Property is located pursuant to insurance policies
conforming to the requirements of Section 4.10. 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) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of
Section 4.10. All individual insurance policies contain a
standard mortgagee clause naming the Company and its successors and assigns
as mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy
at
the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
such Mortgagor’s cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor
has been given an opportunity to choose the carrier of the required hazard
insurance, provided the policy is not a “master” or “blanket” hazard insurance
policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Company has
not
engaged in, and has no knowledge of the Mortgagor, any Subservicer or any prior
originator or subservicer 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, unlawful commission, unlawful kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the
Company;
(g) Compliance
with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending,
real
estate settlement procedures, consumer credit protection, equal credit
opportunity, predatory, abusive and fair lending and disclosure laws applicable
to the origination and servicing of the Mortgage Loan, including, without
limitation, any provisions relating to prepayment penalties, have been complied
with, and the Company shall maintain in its possession, available for the
Purchaser’s inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No
Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Company has not waived
the performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in default, nor has
the
Company waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location
and Type of Mortgaged Property. The Mortgaged Property is a fee
simple or leasehold property located in the state identified in the related
Mortgage Loan Schedule and consists of a parcel of real property with a detached
single family residence erected thereon, or a two- to four-family dwelling,
or
an individual condominium unit in a low-rise condominium project, or an
individual unit in a planned unit development, provided, however, that
any condominium project or planned unit development shall conform with the
Company’s Underwriting Guidelines regarding such dwellings, and no residence or
dwelling is a mobile home or a manufactured dwelling. No portion of
the Mortgaged Property is used for commercial purposes. None of the
Mortgaged Properties are Manufactured Homes, log homes, mobile homes, geodesic
domes or other unique property types;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan)on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property, and all
additions, alterations and replacements made at any time with respect to the
foregoing. The lien of the Mortgage is subject only to:
(a) with
respect to a Second Lien Loan only, the lien on the first mortgage on the
Mortgaged Property;
(b) the
lien of current real property taxes and assessments not yet due and
payable;
(c) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(i) referred to or to otherwise considered in the appraisal made for the
originator of the Mortgage Loan or (ii) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such appraisal;
and
(d) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) and first priority (with
respect to a First Lien Loan) or second priority (with respect to a Second
Lien
Loan) security interest on the property described therein and the Company has
full right to sell and assign the same to the Purchaser. The
Mortgaged Property was not, as of the date of origination of the Mortgage Loan,
subject to a mortgage, deed of trust, deed to secured debt or other security
instrument creating a lien subordinate to the lien of the Mortgage;
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;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage 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 relating to prepayment penalties). All parties to the
Mortgage Note and the Mortgage and any other related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage and any other related agreement, and the Mortgage Note
and
the Mortgage have been duly and properly executed by such
parties. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the information and statements therein not misleading. No fraud
was committed in connection with
the
origination of the Mortgage Loan. The Company has reviewed all of the
documents constituting the Servicing File and has made such inquiries as it
deems necessary to make and confirm the accuracy of the representations set
forth herein;
(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
Company is the sole owner of record and holder of the Mortgage
Loan. The Mortgage Loan is not assigned or pledged, and the Company
has good and marketable title thereto, and has full right to transfer and sell
the Mortgage Loan therein to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement;
(n) Doing
Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is located and any
qualification requirements of FHA, Xxxxxxx Mac, Xxxxxx Xxx, GNMA or VA, as
applicable, and (2) (a) organized under the laws of such state,
(b) qualified to do business in such state, (c) federal savings and
loan associations or national banks having principal offices in such state,
or
(d) not doing business in such state;
(o) CLTV,
LTV, PMI Policy. No Mortgage Loan that is a Second Lien Loan has
a CLTV greater than 100%. No Mortgage Loan has a LTV equal to or
greater than 95%. The original LTV of the Mortgage Loan either was
not more than 80% or (i) the excess over 75% is and will be insured as to
payment defaults by a PMI Policy until the LTV of such Mortgage Loan is reduced
to 80%, or (ii) is subject to an LPMI Policy, which will stay in effect for
the life of the 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; provided,
that, with respect to LPMI Loans, the related Servicer is obligated thereunder
to maintain the LPMI 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
if the related PMI Policy is lender-paid;
(p) Title Insurance. The
Mortgage Loan is covered by either (i) an attorney’s opinion of title and
abstract of title the form and substance of which is acceptable to mortgage
lending institutions making mortgage loans in the area where the Mortgaged
Property is located or (ii) an ALTA lender’s title insurance policy or
other generally acceptable form of policy of insurance acceptable to Xxxxxx
Xxx,
Xxxxxxx Mac, GNMA, FHA, VA, as applicable, issued by a title insurer acceptable
to Xxxxxx Mae, Xxxxxxx Mac, GNMA, FHA, VA as applicable, and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Company, its successors and assigns, (a) as to the first (with respect
to a First Lien Loan) or second (with respect to a Second Lien Loan) priority
lien of the Mortgage in the original principal amount of the Mortgage Loan,
subject only to the exceptions contained in clauses (1), (2) and (3) of
paragraph (j) of this Section 3.02, and (b) against any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustments to the Mortgage
Interest Rate and Monthly Payment. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. Additionally, such lender’s
title insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest
therein. The Company is the sole insured of such lender’s title
insurance policy, and such lender’s title insurance policy is in full force and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such
lender’s title insurance policy, and no prior holder of the Mortgage, including
the Company, has done, by act or omission, anything which would impair the
coverage of such lender’s title insurance policy including without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Company;
(q) No
Defaults. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and there is
no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration, and neither the Company nor its predecessors have waived any
default, breach, violation or event of acceleration;
(r) No
Mechanics’ Liens. There are no mechanics’ or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(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 and, with respect to any
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap, the Periodic Cap, and
the
Adjustment Date, are as set forth on the related Mortgage Loan
Schedule. 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 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 fifteen 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. There are no Convertible Mortgage Loans which contain a
provision allowing the Mortgagor to convert the Mortgage Note from an adjustable
interest rate Mortgage Note to a fixed interest rate Mortgage
Note. The Mortgage Loan does not require a balloon payment on its
stated maturity date;
(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;
(v) Conformance
with Underwriting Guidelines. The Mortgage Loan was underwritten
in accordance with the Company’s Underwriting Guidelines in effect at the time
the Mortgage Loan was originated. The Mortgage Loan is in conformity
with the standards of Xxxxxxx Mac or Xxxxxx Mae under one of their respective
home mortgage purchase programs (except that the principal balance of certain
Mortgage Loans may have exceeded the limits of Xxxxxx Xxx and Xxxxxxx Mac)
and
the Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac, Xxxxxx
Xxx;
(w) Occupancy
of the Mortgaged Property. As of the related Closing Date the
Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to
the use and occupancy of the same, including but not limited to certificates
of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Except as otherwise stated on the
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 (j) above;
(y) Deeds
of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and
no
fees or expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee’s sale after
default by the Mortgagor;
(z) Acceptable
Investment. The Company has no knowledge of any circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor’s credit standing that can reasonably be expected to cause
private institutional investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or adversely affect
the value or marketability of the Mortgage Loan;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered for
the
Mortgage Loan by the Company under this Agreement as set forth in
Exhibit C attached hereto have been delivered to the
Custodian. The Company is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit B, except for
such documents the originals of which have been delivered to the
Custodian;
(bb) Condominiums/Planned
Unit Developments. If the dwelling on the Mortgaged Property is
a condominium unit or a planned unit development (other than a de minimus
planned unit development) such condominium or planned unit development project
meets Xxxxxx Mae and Xxxxxxx Mac eligibility requirements.
(cc) Transfer
of Mortgage Loans. The Assignment of Mortgage is in recordable
form and is acceptable for recording under the laws of the jurisdiction in
which
the Mortgaged Property is located;
(dd) Due
on Sale. The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage
Loan
in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgagor thereunder;
(ee) Consolidation
of Future Advances. Any future advances made prior to the
related Cut-off Date have been consolidated with the outstanding principal
amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Mae and
Xxxxxxx
Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(ff) Mortgaged
Property Undamaged. There is no proceeding pending or, to the
best of the Company’s knowledge, threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended; and
(gg) Collection
Practices; Escrow Deposits. The origination, servicing and
collection practices used with respect to the Mortgage Loan have been in
accordance with Accepted Servicing Practices, and have been in all respects
in
compliance with all applicable laws and regulations. The Mortgage
Loan has been serviced by the Company and any predecessor servicer in accordance
with the terms of the Mortgage Note. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of the Company
and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal
law. An escrow of funds is not prohibited by applicable law and has
been established in an amount sufficient to pay for every item which remains
unpaid and which has been assessed but is not yet due and payable. No
escrow deposits or Escrow Payments or other charges or payments due the Company
have been capitalized under the Mortgage or the Mortgage Note and no such escrow
deposits or Escrow Payments are being held by the Company for any work on a
Mortgaged Property which has not been completed;
(hh) Appraisal. The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a qualified appraiser,
duly appointed by the Company, 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
Mae or Xxxxxxx Mac, as applicable, or Title XI of the Federal Institutions
Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(ii)
Servicemembers Civil Relief Act. No relief has been
requested or allowed to the Mortgagor under the Servicemembers Civil Relief
Act;
(jj) Environmental
Matters. The Mortgaged Property is free from any and all toxic
or hazardous substances and there exists no violation of any local, state or
federal environmental law, rule or regulation. To the best of the
Company’s knowledge, there is no pending action or proceeding directly involving
any Mortgaged Property in which compliance with any environmental law, rule
or
regulation is an issue; and nothing further remains to be done to satisfy in
full all requirements of each such law, rule or regulation consisting a
prerequisite to use and enjoyment of said property;
(kk) Insurance. The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to FHA or VA, as applicable, against loss by fire and such hazards
as
are covered under a standard extended coverage endorsement, in an amount which
is not less than the lesser of 100% of the insurable value of the Mortgaged
Property and the outstanding principal balance of the Mortgage Loan, but in
no
event less than the minimum amount necessary to fully compensate for
any damage or loss on a replacement cost basis; if the Mortgaged
Property is a condominium unit, it is included under the coverage afforded
by a
blanket policy for the project; the insurance policy contains a standard
clause naming the originator of such mortgage loan, its successor and
assigns, as insured mortgagee; if upon origination of the Mortgage Loan, the
improvements on the Mortgaged Property were in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (A) the outstanding principal balance of the Mortgage Loan,
(B) the full insurable value and (C) the maximum amount of insurance
which was available under the Flood Disaster Protection Act of 1983, as
amended. The Company has caused or will cause to be performed any and
all acts required to preserve the rights and remedies of the Purchaser in any
insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser; No action, inaction, or
event has occurred and no state of fact exists or has existed that has resulted
or will result in the exclusion from, denial of, or defense to coverage under
any applicable pool insurance policy, special hazard insurance policy, PMI
Policy or bankruptcy bond, irrespective of the cause of such failure of
coverage. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Company or any designee of the Company or any corporation in which the Company
or any officer, director, or employee had a financial interest at the time
of
placement of such insurance;
(ll) Regarding
the Mortgagor. The Mortgagor is one or more natural persons
and/or trustees for an Illinois land trust or a trustee under a “living trust”
and such “living trust” is in compliance with Xxxxxx Xxx guidelines for such
trusts;
(mm) Predatory
Lending Regulations; High Cost Loans. None of the Mortgage Loans
are classified as (a) High Cost Loan or Covered Loan,
(b) a “high cost” loans under Section 32 of the Home
Ownership and Equity Protection Act of 1994, as amended, or (c) ”high cost
home,” “threshold,” “covered,” “high risk home,” or “predatory” or similar loans
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); provided that any Mortgage
Loan
secured by a Mortgaged Property in Illinois characterized as a “threshold” loan
shall not be a “high cost” loan unless it is characterized as “predatory” under
applicable local law;
(nn) Simple
Interest Mortgage Loans. None of the Mortgage Loans are simple
interest Mortgage Loans;
(oo) Single-Premium
Credit Life Insurance. No Mortgagor was required to purchase any
single premium credit insurance policy (e.g., life, mortgage, disability,
property, accident, unemployment or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) 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;
(pp) Negative
Amortization. No Mortgage Loan permits negative
amortization;
(qq) Tax
Services. Each Mortgage Loan is either (i) a First Lien Loan covered
by either (x) a paid in full, life of loan tax service contract issued by
First American Real Estate Tax Service or Land America Real Estate Tax
Services, and such contract is transferable, or (y) a tax service
monitoring contract with ZC Sterling Tax Solutions, or (ii) a Second Lien
Loan subordinate to the First Lien Loan, which to the best of Seller’s
knowledge, is covered by a paid in full, life of loan, tax service contract
issued by First American Real Estate Tax Service or Land America Real Estate
Tax
Services, and such contract is transferable;
(rr) Flood
Certification Contract. The Company has obtained a life of loan,
transferable flood certification contract with an Approved Flood Policy Insurer
in its sole discretion for each Mortgage Loan and such contract is assignable
without penalty, premium or cost to the Purchaser;
(ss) FICO
Scores. Each Mortgage Loan has a non-zero FICO
score;
(tt) Prepayment
Penalty. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and
will
be enforced by the Company during the period the Company is acting as Servicer
for the benefit of the Purchaser, and each Prepayment Penalty in 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 provide 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 the related Mortgage Note 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 Prepayment Penalty upon a prepayment prior to
maturity: (i) the Mortgage Loan’s 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;
(uu) 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 Company, or is in the process of being
recorded;
(vv) Leaseholds. If
the Mortgage Loan is secured by a long-term residential lease, (1) the
lessor under the lease holds a fee simple interest in the land; (2) the
terms of such lease expressly permit the mortgaging of the leasehold estate,
the
assignment of the lease without the lessor’s consent and the acquisition by the
holder of the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protections; (3) the terms of such lease do not
(a) allow the termination thereof upon the lessee’s default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease
in the event of damage or destruction as long as the Mortgage is in existence,
(c) prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies relating
to
the Mortgaged Property or (d) permit any increase in rent other than
pre-established increases set forth in the lease; (4) the original term of
such lease is not less than 15 years; (5) the term of such lease does
not terminate earlier than five years after the maturity date of the
Mortgage Note; and (6) the Mortgaged Property is located in a jurisdiction
in which the use of leasehold estates in transferring ownership in residential
properties is a widely accepted practice;
(ww) Payment
in Full. No Mortgage Loan will be paid in full on or prior to
the related Closing Date;
(xx) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(yy) Georgia
Fair Lending Act. There is no Mortgage Loan that was originated
at any time during the period commencing on October 1, 2002 and ending on
March 7, 2003, with an initial balance equal to or less than $322,700,
which is secured by property located in the State of Georgia; there is no
Mortgage Loan that was originated on or after March 7, 2003 which is a
“high cost home loan” as defined under the Georgia Fair Lending
Act;
(zz) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first 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;
(aaa) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions
pursuant to which Monthly Payments are paid or partially paid with funds
deposited in any separate account established by the Company, the Mortgagor,
or
anyone on behalf of the Mortgagor, or paid by any source other than the
Mortgagor nor does it contain any other similar provisions 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;
(bbb) Conversion
to Fixed Interest Rate. With respect to Adjustable Rate Mortgage
Loans, the Mortgage Loan is not a Convertible Mortgage Loan;
(ccc) Disclosure
Materials. The Mortgagor has executed a statement to the effect
that the Mortgagor has received all disclosure materials required by, and the
Company has complied with, all applicable law with respect to the making of
the
Mortgage Loans. The Company shall maintain such statement in the
Mortgage File;
(ddd) No
Defense to Insurance Coverage. No action has been taken or
failed to be taken, no event has occurred and no state of facts exists or has
existed on or prior to the related Closing Date (whether or not known to the
Company on or prior to such date) which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any primary mortgage
insurance (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), provided this
shall
not include the failure of such insurer to pay by reason of such insurer’s
breach of such insurance policy or such insurer’s financial inability to
pay;
(eee) Prior
Servicing. Each Mortgage Loan has been serviced in all material
respects in strict compliance with Accepted Servicing Practices;
(fff) 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 Company to the Purchaser, that Company has full right and authority
and
is not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded from furnishing the same to any
subsequent or prospective purchaser of such Mortgage;
(ggg) 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;
(hhh) 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);
(iii) 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;
(jjj) No
Prior Offer. The Mortgage Loan has not previously been offered
for sale;
(kkk) No
Fraud. 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
Company has reviewed all of the documents constituting the Servicing File and
has made such inquiries as it deems necessary to make and confirm the accuracy
of the representations set forth herein;
(lll) HOEPA. No
Mortgage Loan is classified as a Predatory Mortgage Loan under Section 32
of the Home Ownership and Equity Protection Act of 1994, as amended, or any
similar state or local law including, without limitation, the Local Law for
the
City of New York, No. 36 relating to predatory lending passed by the New
York City Council on November 20, 2002, as amended from time to
time;
(mmm) Fair
Credit Reporting Act. The Company has and shall in its capacity
as servicer, for each Mortgage Loan, fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis;
(nnn) [Reserved]
(ooo) FHA
Insurance/VA Guaranty. Each FHA Mortgage Loan was underwritten
in accordance with FHA standards and is fully-insured by the FHA, which
insurance is in full force and effect, and the Mortgage Loan is not subject
to
any defect which would diminish or impair the FHA insurance, and all prior
transfers, if any, of the Mortgage Loan have been, and the transactions herein
contemplated are, in compliance with the FHA regulations, and no circumstances
exist with respect to the FHA Mortgage Loans which would permit the FHA to
deny
coverage under the FHA insurance; and each VA Mortgage Loan was underwritten
in
accordance with VA standards and is guaranteed by the VA, which guaranty is
in
full force and effect, and the Mortgage Loan is not subject to any defect which
would diminish or impair the VA guaranty (other than a potential valuation
of
the mortgaged property), and all prior transfers, if any, of the Mortgage Loan
have been, and the transactions herein contemplated are, in compliance with
the
VA regulations, and no circumstances exist with respect to the VA Mortgage
Loan
which would permit the VA to deny coverage under the VA guaranty. No
Mortgage Loan is a VA Vendee Loan, Title I Loan or Section 235
Loan. Each Mortgage Loan was previously included in a GNMA mortgage
loan pool and was repurchased from such pool, in accordance with applicable
GNMA
guidelines, by the Company or a predecessor servicer, after such Mortgage Loan
missed one or more Monthly Payments and remained delinquent for 90
consecutive days or more; and
(ppp) No
Arbitration. No Mortgagor with respect to any Mortgage Loans
originated on or after August 1, 2004 agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the Mortgage Loan
transaction; and
(qqq) Origination
Practices/No Steering. 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, unless such Mortgagor requested a specific
product;
(rrr) Underwriting
Methodology. The methodology used in underwriting the extension
of credit for each Mortgage Loan does not rely solely 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
such as the Mortgagor’s income, assets and 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;
(sss) Points
and Fees. No Mortgagor was charged “points and fees” (whether or
not financed) in an amount greater than 5% of the principal amount of such
Mortgage Loan, 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 which miscellaneous
fees and charges in total, do not exceed 0.25% of the principal amount of such
Mortgage Loan;
(ttt) Fees
Charges. All points, 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 have been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation;
(uuu) Second
Lien Loans. With respect to each Second Lien Loan:
No
Negative Amortization of Related First Lien Loan. The related
first lien loan does not permit negative amortization;
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;
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;
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
(vvv) Principal
Residence. The related Mortgaged Property is the Mortgagor’s
principal residence.