REDWOOD TRUST, INC. Purchaser and WELLS FARGO BANK, N.A. Company
Exhibit
10.7
Execution
Copy
June
27,
2007
REDWOOD
TRUST, INC.
Purchaser
and
XXXXX
FARGO BANK, N.A.
Company
SELLER'S
WARRANTIES AND SERVICING AGREEMENT
Dated
as of June 1, 2007
Adjustable
Rate Mortgage Loans
WFHM
2007-W24
TABLE
OF CONTENTS
|
ARTICLE
I
|
1
|
|||
|
DEFINITIONS
|
1
|
|||
|
ARTICLE
II
|
14
|
|||
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF
DOCUMENTS
|
14 | |||
|
ARTICLE
III
|
20
|
|||
|
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
|
20
|
|||
|
ARTICLE
IV
|
42
|
|||
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
42
|
|||
|
ARTICLE
V
|
61
|
|||
|
PAYMENTS
TO PURCHASER
|
61
|
|||
|
ARTICLE
VI
|
62
|
|||
|
GENERAL
SERVICING PROCEDURES
|
62
|
|||
|
ARTICLE
VII
|
67
|
|||
|
COMPANY
TO COOPERATE
|
67
|
|||
|
ARTICLE
VIII
|
68
|
|||
|
THE
COMPANY
|
68
|
|||
|
ARTICLE
IX
|
70
|
|||
|
REMOVAL
OF MORTGAGE LOANS FROM AGREEMENT
|
70
|
i
|
ARTICLE
X
|
80
|
|||
|
DEFAULT
|
80
|
|||
|
ARTICLE
XI
|
82
|
|||
|
TERMINATION
|
82
|
|||
|
ARTICLE
XII
|
83
|
|||
|
MISCELLANEOUS
PROVISIONS
|
83
|
EXHIBITS
|
Exhibit
A
|
Mortgage
Loan Schedule
(WFHM
2007-W24)
|
|
|
Exhibit
B
|
Custodial Agreement | |
|
Exhibit
C
|
Contents of Each Custodial Mortgage File; Retained Mortgage File and Servicing File | |
|
Exhibit
D
|
Data File Fields | |
|
Exhibit
E
|
Form of Opinion of Counsel | |
|
Exhibit
F
|
Servicing Criteria | |
|
Exhibit
G
|
Sarbanes Certification | |
|
Exhibit
H
|
Form of Assignment, Assumption and Recognition Agreement | |
|
Exhibit
I
|
Form of Security Release Certification |
ii
This
is a
Seller's Warranties and Servicing Agreement for adjustable rate residential
first lien mortgage loans, dated and effective as of June 1, 2007, and is
executed between Redwood Trust Inc., as purchaser (the "Purchaser"), and Xxxxx
Fargo Bank, N.A., as seller and servicer (the "Company").
WITNESSETH
WHEREAS,
the Purchaser has agreed to purchase from the Company and the Company has agreed
to sell to the Purchaser certain first lien, adjustable rate mortgage loans
(the
“Mortgage Loans”) which have an aggregate outstanding principal balance as of
the close of business on the Cut-off Date, after deduction of payments due
on or
before such date, whether or not received, as indicated on the Mortgage Loan
Schedule, which is annexed hereto as Exhibit A;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the related Mortgage Loan Schedule;
and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the conveyance, servicing and control of the Mortgage Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
the Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
1
Adjustment
Date:
As to
each Adjustable Rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage Note and
Mortgage.
Agency/Agencies:
Xxxxxx
Xxx or Xxxxxxx Mac, or any of them as applicable.
Agency
Transfer:
Any sale
or transfer of some or all of the Mortgage Loans by the Purchaser to an Agency
which sale or transfer is not a Securitization Transaction or Whole Loan
Transfer.
Agreement:
This
Seller's Warranties and Servicing Agreement and all exhibits, amendments and
supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property, provided, however, that in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser, or if the related Mortgage has been recorded in the name of MERS
or
its designee, such actions as are necessary to cause the Purchaser to be shown
as the owner of the related Mortgage on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS.
Assignment
of Mortgage Note and Pledge Agreement:
With
respect to a Cooperative Loan, an assignment of the Mortgage Note and Pledge
Agreement.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the states where the parties are located are authorized
or obligated by law or executive order to be closed.
Buydown
Agreement:
An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property,
the Company or any other source, plus any interest earned thereon, in order
to
enable the Mortgagor to reduce the payments required to be made from the
Mortgagor’s funds during the Buydown Period.
2
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date:
June
28, 2007.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Commitment
Letter: That
certain letter agreement dated as of June 4, 2007, between the Company and
the
Purchaser.
Company:
Xxxxx
Fargo Bank, N.A., or its successor in interest or assigns, or any successor
to
the Company under this Agreement appointed as herein
provided.
Company
Information:
As
defined in Section 9.01(e)(i)(A).
Company
Mortgage Loan:
A
Mortgage Loan that has been underwritten in accordance with the Company
Underwriting Guidelines.
Company
Underwriting Guidelines:
The
underwriting guidelines of the Company, applicable to the Company Mortgage
Loans, as provided to Purchaser by the Company.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
3
Cooperative
Lien Search:
A
search for (a) federal tax liens, mechanics’ liens, lis
pendens,
judgments of record or otherwise against (i) the Cooperative, (ii) the seller
of
the Cooperative Apartment and (iii) the Mortgagor if the Cooperative Loan is
a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the deed
of the Project into the Cooperative.
Cooperative
Loan:
A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Covered
Loan:
A
Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
LEVELS® Glossary, Appendix E, in effect on the Closing Date.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Assignment of Mortgage and other applicable Mortgage Loan Documents, which
is
annexed hereto as Exhibit B.
Custodial
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 1 through 5 of Exhibit C attached hereto, which have
been delivered to the Custodian as of the Closing Date.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
Cut-off
Date:
June 1,
2007.
Data
File:
The
electronic data file prepared by the Company and delivered to the Purchaser
which includes the Data File Fields as set forth on Exhibit D, with respect
to
the Mortgage Loans.
Data
File Fields:
The
data fields set forth on Exhibit D with respect to each Mortgage
Loan.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the terms
of this Agreement and which is, in the case of a substitution pursuant to
Section 3.03, replaced or to be replaced with a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
4
Document
Transfer Event:
The day
on which (i) the Company or any successor thereto is no longer the servicer
of
any of the Mortgage Loans, (ii) the senior, unsecured long-term debt rating
of
Xxxxx Fargo & Company is less than "BBB-" by Fitch, Inc. or (iii) any Rating
Agency requires the Company to deliver the Retained Mortgage Files to the
Custodian.
Due
Date:
The
first day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
4.06.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exception
Mortgage Loan: A
Mortgage Loan that has been underwritten in accordance with the Company
Underwriting Guidelines, but for which one or more exceptions to those
guidelines have been allowed.
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
Federal National Mortgage Association, or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
First
Remittance Date:
July
18, 2007.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
5
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount,
as
indicated on the related Mortgage Loan Schedule, set forth in the related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
“high risk home,” “predatory” or similar loan under any other applicable state,
federal or local law or (c) categorized as “High Cost” pursuant to the Standard
& Poor’s LEVELS® Glossary, Appendix E, in effect on the Closing
Date.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
related Data File and set forth in the related Mortgage Note for the purpose
of
calculating the interest thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan for which an interest-only payment feature is allowed during
the
interest-only period set forth in the related Mortgage Note.
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A PMI
Policy for which the Purchaser or the Company pays all premiums from its own
funds, without reimbursement therefor.
Letter
of Credit:
With
respect to a Pledged Asset Mortgage Loan, a guaranty issued to the Company
by
the Pledge Holder for the Pledged Value Amount.
Liquidation
Proceeds:
Amounts
received in connection with the partial or complete liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of
the
Mortgage Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original loan amount of the
Mortgage Loan at its origination (unless otherwise indicated) to the Appraised
Value of the Mortgaged Property.
Master
Servicer:
Xxxxx
Fargo Bank, N.A., or its successor in interest or assigns.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note which is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
6
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage or Assignment of Mortgage has
been registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by MERS.
MIN:
The
Mortgage Identification Number used to identify mortgage loans registered under
MERS.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth in
the
related Mortgage Note which is the minimum interest rate to which the Mortgage
Interest Rate on such Mortgage Loan may be decreased on any Adjustment
Date.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date required to be advanced
by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
The
scheduled monthly payment of principal and interest, or in the case of an
Interest Only Mortgage Loan, payments of (i) interest or (ii) principal and
interest, as applicable, on a Mortgage Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note or the Pledge Agreement securing the Mortgage Note
for a Cooperative Loan.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
4.11.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on a Mortgage Note from time to time,
in
accordance with the provisions of the Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan. The Mortgage
Loans shall include the Company Mortgage Loans, Exception Mortgage Loans and
Third-Party Mortgage Loans.
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the documents listed on Exhibit C attached hereto.
7
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the related Mortgage Interest Rate minus
the
Servicing Fee Rate.
Mortgage
Loan Schedule: A
schedule of Mortgage Loans annexed hereto as Exhibit A, such schedule setting
forth the following information with respect to each Mortgage Loan: (1) the
Company’s Mortgage Loan number; (2) the city, state and zip code of the
Mortgaged Property; (3) a code indicating whether the Mortgaged Property is
a
single family residence, two-family residence, three-family residence,
four-family residence, a Cooperative Apartment, planned unit development or
condominium; (4) the Mortgage Interest Rate as of the Cut-off Date; (5) the
Mortgage Loan Remittance Rate as of the Cut-off Date; (6) the Monthly Payment
as
of the Cut-off Date; (7) the Gross Margin; (8) the original term to maturity;
(9) the scheduled maturity date; (10) the principal balance of the Mortgage
Loan
as of the Cut-off Date after deduction of payments of principal due on or before
the Cut-off Date whether or not collected; (11) the Loan-to-Value Ratio; (12)
the next Adjustment Date immediately following the Cut-off Date; (13) the
lifetime Periodic Interest Rate Cap; (14) the type of Adjustable Rate Mortgage
Loan; (15) the Maximum Mortgage Interest Rate; (16) the first Adjustment Date
immediately following origination; (17) whether the Mortgage Loan is convertible
or not; (18) a code indicating the mortgage guaranty insurance company; and
(19)
the Servicing Fee Rate.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
and riders thereto.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
or
with respect to a Cooperative Loan, the Cooperative
Apartment.
Mortgagor:
The
obligor on a Mortgage Note.
Non-Assigned
Letter of Credit:
A
Letter of Credit in which the named beneficiary is the
Company.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an Assistant Vice President and
certified by the Treasurer or the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Company, and delivered to the Purchaser as
required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Periodic
Interest Rate Cap:
As to
each Adjustable Rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date pursuant to the terms of the
Mortgage Note.
Person:
Any
individual, corporation, partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
8
Pledge
Account:
With
respect to a Pledged Asset Mortgage Loan, an account that is managed by the
Pledge Holder to secure a Letter of Credit.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary Lease.
Pledge
Holder:
With
respect to a Pledged Asset Mortgage Loan, the entity that holds the Pledge
Account, manages the Pledge Account and provides the Letter of Credit.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge Agreement.
Pledged
Asset Mortgage Loan:
A
Mortgage Loan for which the Mortgagor has pledged financial assets as partial
collateral for the Mortgage Loan, in lieu of a cash down payment.
Pledged
Value Amount:
With
respect to a Pledged Asset Mortgage Loan, a minimum of 20% of the lower of
the
Purchase Price or Appraised Value of a Mortgaged Property.
PMI
Policy:
A
policy of primary mortgage guaranty insurance evidenced by an electronic form
and certificate number issued by a Qualified Insurer, as required by this
Agreement with respect to certain Mortgage Loans. The premiums on a PMI Policy
may be paid (i) by the Mortgagor or (ii) by the Company from its own funds,
without reimbursement, in the case of an LPMI Policy.
Prepayment
Penalty:
Payments penalties, fees or charges calculated pursuant to the Mortgage Note
and
due pursuant to the terms of the Mortgage Loan as the result of a Principal
Prepayment of the Mortgage Loan, not otherwise due thereon in respect of
principal or interest.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
calendar month preceding the month in which the related Remittance Date occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common areas.
9
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchase
Price:
The
purchase price percentage for the Mortgage Loans as specified in the related
Commitment Letter, and as may be adjusted pursuant to such related Commitment
Letter.
Purchaser:
Redwood
Trust, Inc., or its successor in interest or any successor to the Purchaser
under this Agreement as herein provided.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within 180
days after origination; (iii) either (x) the Designated Guidelines were, at
the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and (iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company. The Designated Guidelines
are
the Company Underwriting Guidelines.
Qualified
Depository:
A
deposit account or accounts maintained with a federal or state chartered
depository institution the deposits in which are insured by the FDIC to the
applicable limits and the short-term unsecured debt obligations of which (or,
in
the case of a depository institution that is a subsidiary of a holding company,
the short-term unsecured debt obligations of such holding company) are rated
A-1
by Standard & Poor’s Ratings Services or Prime-1 by Xxxxx’x Investors
Service, Inc. (or a comparable rating if another rating agency is specified
by
the Purchaser by written notice to the Company) at the time any deposits are
held on deposit therein.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Mae or Xxxxxxx Mac.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Company for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage loan
for a Deleted Mortgage
Loan, an aggregate principal balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) have a Mortgage Loan Remittance
Rate
not less than, and not more than two percent (2%) greater, than the Mortgage
Loan Remittance Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
and
(v) comply with each representation and warranty set forth in Sections 3.01
and
3.02.
10
Rating
Agency:
Each of
Fitch, Inc., Xxxxx’x Investors Service, Inc., Standard & Poor’s Ratings
Services and DBRS, Inc., or any successor thereto.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
Any
Securitization Transaction, Agency Transfer or Whole Loan
Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer, Agency Transfer or Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
shall be reconstituted as part of an Agency Transfer, Securitization Transaction
or Whole Loan Transfer pursuant to Section 9.01 hereof. The Reconstitution
Date
shall be such date which the Purchaser shall designate.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A "real
estate mortgage investment conduit" within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to
time.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately preceding) of any month, beginning with the First Remittance Date.
11
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price:
A price
equal to (i) the Stated Principal Balance of the Mortgage Loan as of the date
on
which such repurchase takes place, plus (ii) interest on such Stated Principal
Balance at the Mortgage Loan Remittance Rate from the date on which interest
has
last been paid and distributed to the Purchaser through the last day of the
month in which such repurchase takes place, less amounts received or advanced
in
respect of such repurchased Mortgage Loan which are being held in the Custodial
Account for distribution in the month of repurchase.
Retained
Mortgage File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 6 through 12 of Exhibit C attached
hereto.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (a) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities, the payments on which
are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 9.01(e)(iii).
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses other
than Monthly Advances (including reasonable attorney's fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section 4.08
(excluding the Company’s obligation to pay the premiums on LPMI Policies) and
Section 4.10.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Company, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is received.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and
the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section 4.05) of such Monthly Payment collected by the Company, or as otherwise
provided under Section 4.05.
12
Servicing
Fee Rate:
0.250%
per annum per Mortgage Loan.
Servicing
File:
With
respect to each Mortgage Loan, the file consisting of the Mortgage Loan
Documents listed as items 13 through 28 of Exhibit C attached hereto plus copies
of all Mortgage Loan Documents contained in the Custodial Mortgage File and
the
Retained Mortgage File, which are retained by the Company.
Servicing
Officer:
Any
officer of the Company involved in or responsible for the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such list
may from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan and as of any date of determination, (i) the principal
balance of the Mortgage Loan at the Cut-off Date after giving effect to payments
of principal due on or before such date, whether or not received, minus (ii)
all
amounts previously distributed to the Purchaser with respect to the related
Mortgage Loan representing payments or recoveries of principal or advances
in
lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subsidy
Account:
An
account maintained by the Company specifically to hold all Subsidy Funds to
be
applied to individual Subsidy Loans.
13
Subsidy
Funds:
With
respect to any Subsidy Loans, funds contributed by the employer of a Mortgagor
in order to reduce the payments required from the Mortgagor for a specified
period in specified amounts.
Subsidy
Loan:
Any
Mortgage Loan subject to a temporary interest subsidy agreement pursuant to
which the monthly interest payments made by the related Mortgagor will be less
than the scheduled monthly interest payments on such Mortgage Loan, with the
resulting difference in interest payments being provided by the employer of
the
Mortgagor. Each Subsidy Loan will be identified as such in the related Data
File.
Third-Party
Mortgage Loans:
A
Mortgage Loan that has been underwritten in accordance with the related
Third-Party Underwriting Guidelines.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Third-Party
Underwriting Guidelines:
The
underwriting guidelines of a Third-Party Originator, as amended from time to
time, applicable to the related Third-Party Mortgage Loans, as provided to
the
Purchaser by the Company.
Time$aver®
Mortgage Loan:
A
Mortgage Loan which has been refinanced pursuant to a Company program that
allows a rate/term refinance of an existing Company serviced loan with minimal
documentation.
Unverified
Information: With
respect to the Mortgage Loans listed on the related Data File, information
regarding the Mortgagor’s income, source of income, or assets that is stated on
the loan application by the Mortgagor but not verified in the origination
process, pursuant to the applicable Company Underwriting Guidelines (other
than
the exception identified for Exception Mortgage Loans) or the Third-Party
Underwriting Guidelines, as applicable.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans other than a
Securitization Transaction or Agency Transfer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF CUSTODIAL
MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF DOCUMENTS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files;
Maintenance
of Retained Mortgage File and Servicing Files.
The
Company, simultaneously with the execution and delivery of this Agreement,
does
hereby sell, transfer, assign, set over and convey to the Purchaser, without
recourse, but subject to
the
terms of this Agreement, all the right, title and interest of the Company in
and
to the Mortgage Loans, together with the Retained Mortgage Files and Custodial
Mortgage Files and all rights and obligations arising under the documents
contained therein. Pursuant to Section 2.03, the Company has delivered the
Custodial Mortgage File for each Mortgage Loan to the Custodian.
14
The
contents of each Retained Mortgage File not delivered to the Custodian are
and
shall be held in trust by the Company for the benefit of the Purchaser as the
owner thereof. Additionally and separate to the Retained Mortgage File, the
Company shall maintain a Servicing File consisting of a copy of the contents
of
each Custodial Mortgage File and the Retained Mortgage File. The possession
of
each Servicing File and Retained Mortgage File by the Company is at the will
of
the Purchaser for the sole purpose of servicing the related Mortgage Loan,
and
such retention and possession by the Company is in a custodial capacity only.
Upon the sale of the Mortgage Loans the ownership of each Mortgage Note, the
related Mortgage and the related Custodial Mortgage File, Retained Mortgage
File
and Servicing File shall vest immediately in the Purchaser, and the ownership
of
all records and documents with respect to the related Mortgage Loan prepared
by
or which come into the possession of the Company shall vest immediately in
the
Purchaser and shall be retained and maintained by the Company, in trust, at
the
will of the Purchaser and only in such custodial capacity. The Company shall
release its custody of the contents of any Retained Mortgage File and Servicing
File only in accordance with written instructions from the Purchaser or within
sixty (60) days of the occurrence of a Document Transfer Event, unless such
release is required as incidental to the Company's servicing of the Mortgage
Loans or is in connection with a repurchase of any Mortgage Loan pursuant to
Section 3.03 or 6.02. Company shall not be responsible for any such costs
associated with the release, transfer and re-delivery of any Custodial Mortgage
Files, Retained Mortgage Files and/or Servicing Files between the parties unless
the Company is releasing, transferring or re-delivering such Custodial Mortgage
Files, Retained Mortgage Files and/or Servicing Files in connection with the
repurchase of such Mortgage Loan pursuant to Section 3.03 or 6.02.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause the MERS System to indicate that such Mortgage
Loan has been assigned by the Company to the Purchaser in accordance with this
Agreement by including (or deleting, in the case of a Mortgage Loan repurchased
in accordance with this Agreement) in such computer files the information
required by the MERS System to identify the Purchaser as the beneficial owner
of
such Mortgage Loan.
Section
2.02 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale of the Mortgage Loans to the Purchaser all rights arising out
of
the Mortgage Loans, including, but not limited to, all funds received on or
in
connection with the Mortgage Loans, shall be received and held by the Company
in
trust for the benefit of the Purchaser as owner of the Mortgage Loans, and
the
Company shall retain record title to the related Mortgages for the sole purpose
of facilitating the servicing and the supervision of the servicing of the
Mortgage Loans.
15
The
sale
of each Mortgage Loan shall be reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by Xxxxxx Mae or Xxxxxxx Mac and records
of periodic inspections as required by Section 4.13. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Company may be in the form
of
microfilm or microfiche or such other reliable means of recreating original
documents, including but not limited to, optical imagery techniques so long
as
the Company complies with the requirements of the Xxxxxx Mae or Xxxxxxx Mac
Selling and Servicing Guide, as amended from time to time.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Purchaser or its designee the related Retained
Mortgage File and Servicing File during the time the Purchaser retains ownership
of a Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transferee of a Mortgage Loan shall be
recognized by the Company hereunder unless such transfer is in compliance with
the terms hereof. For the purposes of this Agreement, the Company shall be
under
no obligation to deal with any Person with respect to this Agreement or the
Mortgage Loans unless the books and records show such Person as the owner of
the
Mortgage Loan. The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans. The Purchaser shall advise
the
Company of the transfer. Upon receipt of notice of the transfer, the Company
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall
be
received by the Company no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Company’s duties to remit and report as required by Section 5 shall
begin with the next Due Period.
Upon
request from the Purchaser, at the Purchaser’s expense, the Company shall
deliver no later than thirty (30) Business Days after such request any Retained
Mortgage File or document therein, or copies thereof, to the Purchaser at the
direction of the Purchaser. An extension of this date may be requested from
the
Purchaser, which consent shall not be unreasonably withheld. The Purchaser
shall
return any Retained Mortgage File or document therein delivered pursuant to
this
Section 2.02 no later than ten (10) Business Days after receipt thereof. In
the
event that the Company fails to make delivery of the requested Retained
Mortgage
File or document therein, or copies thereof, as required under this Section
2.02, the Company shall repurchase, in accordance with this Agreement, the
related Mortgage Loan within thirty (30) Business Days of a request to do so
by
the Purchaser.
16
Section
2.03 Custodial
Agreement; Delivery of Documents.
The
Company has delivered to the Custodian those Mortgage Loan Documents as
contained in the Custodial Mortgage File pursuant to this Agreement with respect
to each Mortgage Loan.
The
Custodian has certified its receipt of all such Mortgage Loan Documents in
each
Custodial Mortgage File required to be delivered pursuant to this Agreement,
as
evidenced by the trust receipt or initial certification of the Custodian in
the
form annexed to the Custodial Agreement. The Purchaser will be responsible
for
the fees and expenses of the Custodian.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one (1) week of
their execution, provided, however, that the Company shall provide the Custodian
with a certified true copy of any such document submitted for recordation within
ten (10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty (60) days of its submission for recordation.
In
the
event the public recording office is delayed in returning any original document,
the Company shall deliver to the Custodian within 240 days of its submission
for
recordation, a copy of such document and an Officer's Certificate, which shall
(i) identify the recorded document; (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will
be
delivered to the Custodian. The Company will be required to deliver the document
to the Custodian by the date specified in (iv) above. An extension of the date
specified in (iv) above may be requested from the Purchaser, which consent
shall
not be unreasonably withheld.
Prior
to
Company’s receipt of the Purchase Price, the Purchaser shall cause the Custodian
to act as bailee for the sole and exclusive benefit of the Company pursuant
to
the Custodial Agreement and act only in accordance with Company’s instructions.
Upon the Company’s receipt of the Purchase Price, the Company shall provide
notification to the Custodian to release the ownership of the Mortgage Loan
Documents contained in the Custodial Mortgage File. Such notification shall
be
in a form of a written notice by facsimile or other electronic media, with
a
copy sent to the Purchaser. Subsequent to such release, such Mortgage Loan
Documents shall be retained by the Custodian for the benefit of the Purchaser.
All Mortgage Loan Documents related to Mortgage Loans not purchased by the
Purchaser on the Closing Date shall be maintained by the Custodian for the
benefit of the Company and shall be returned to the Company within two (2)
Business Days after the Closing Date.
17
In
the
event that new, replacement, substitute or additional Stock Certificates are
issued with respect to existing Cooperative Shares, the Company immediately
shall deliver to the Custodian the new Stock Certificates, together with the
related Stock Powers in blank. Such new Stock Certificates shall be subject
to
the related Pledge Instruments and shall be subject to all of the terms,
covenants and conditions of this Agreement.
Section
2.04 Examination
of Mortgage Files.
Prior
to
the Closing Date, the Company shall (a) deliver to the Purchaser in escrow,
for
examination, the Custodial Mortgage File for each Mortgage Loan, including
the
Assignment of Mortgage, pertaining to each Mortgage Loan, and (b) make the
Servicing Files and Retained Mortgage Files available to the Purchaser for
examination at the Company's offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Company. Such examination may be made
by
the Purchaser at any time before or after the Closing Date or by any prospective
purchaser of the Mortgage Loans from the Purchaser, at any time after the
Closing Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted
or
has failed to conduct any partial or complete examination of the Custodial
Mortgage Files, Servicing Files or Retained Mortgage Files shall not affect
the
Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief or remedy as provided under this Agreement.
Section
2.05 Representations,
Warranties and Agreements of Company.
The
Company agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Section 3.01 and 3.02 of this Agreement, as of
the
Closing Date. The Company, without conceding that the Mortgage Loans are
securities, hereby makes the following additional representations, warranties
and agreements which shall be deemed to have been made as of the Closing Date:
| (a) |
neither
the Company nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of any Mortgage Loans, any interest
in
any Mortgage Loans or any other similar security to, or solicited
any
offer to buy or accept a transfer, pledge or other disposition of
any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect
to any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security with, any Person in any manner, or made any general solicitation
by means of general advertising or in any other manner, or taken
any other
action which would constitute a distribution of the Mortgage Loans
under
the Securities Act or which would render the disposition of any Mortgage
Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized
or
will it authorize any Person to act, in such manner with respect
to the
Mortgage Loans; and
|
18
| (b) |
the
Company has not dealt with any broker or agent or anyone else who
might be
entitled to a fee or commission in connection with this transaction
other
than the Purchaser.
|
Section
2.06 Representation,
Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
have
been deemed to have been made as of the Closing Date.
| (a) |
the
Purchaser understands that the Mortgage Loans have not been registered
under the Securities Act or the securities laws of any state;
|
| (b) |
the
Purchaser is acquiring the Mortgage Loans for its own account only
and not
for any other Person;
|
| (c) |
the
Purchaser considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
|
| (d) |
the
Purchaser has been furnished with all information regarding the Mortgage
Loans which it has requested from the Seller; and
|
| (e) |
neither
the Purchaser nor anyone acting on its behalf offered, transferred,
pledged, sold or otherwise disposed of any Mortgage Loan, any interest
in
any Mortgage Loan or any other similar security to, or solicited
any offer
to buy or accept a transfer, pledge or other disposition of any Mortgage
Loan, any interest in any Mortgage Loan or any other similar security
from, or otherwise approached or negotiated with respect to any Mortgage
Loan, any interest in any Mortgage Loan or any other similar security
with, any Person in any manner, or made any general solicitation
by means
of general advertising or in any other manner, or taken any other
action
which would constitute a distribution of the Mortgage Loans under
the
Securities Act or which would render the disposition of any Mortgage
Loan
a violation of Section 5 of the Securities Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any Person to act, in such manner with respect to the Mortgage
Loans.
|
Section
2.07 Closing.
The
closing for the purchase and sale of the Mortgage Loans, shall take place on
the
Closing Date. At the Purchaser's option, the closing shall be either: by
telephone, confirmed by letter or wire as the parties shall agree; or conducted
in Person, at such place as the parties shall agree.
The
closing shall be subject to each of the following conditions:
19
| (a) |
all
of the representations and warranties of the Company under this Agreement
shall be true and correct as of the Closing Date and no event shall
have
occurred which, with notice or the passage of time, would constitute
an
Event of Default under this Agreement;
|
| (b) |
the
Purchaser shall have received, or the Purchaser's attorneys shall
have
received in escrow, all closing documents, in such forms as are agreed
upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the respective terms
thereof;
|
| (c) |
the
Company shall have delivered to the Custodian under this Agreement
all
documents required pursuant to this Agreement; and
|
| (d) |
all
other terms and conditions of this Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on the
Closing Date the Purchase Price by wire transfer of immediately available funds
to the account designated by the Company.
Section
2.08 Closing
Documents.
With
respect to the Mortgage Loans, the closing documents shall consist of fully
executed originals of the following documents:
| (a) |
this
Agreement, dated as of the Cut-off Date, in two counterparts;
|
| (b) |
the
Custodial Agreement, attached as Exhibit B to this Agreement;
|
| (c) |
the
Mortgage Loan Schedule, a copy of each to be attached to each counterpart
of this Agreement;
|
| (d) |
a
trust receipt and certification, as required under the Custodial
Agreement;
|
| (e) | an Opinion of Counsel of the Seller, in the form of Exhibit E hereto; |
| (f) | the Commitment Letter; and |
| (g) | the Security Release Certification, in the form of Exhibit I hereto. |
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.01 Company
Representations and Warranties.
20
The
Company hereby represents and warrants to the Purchaser that, as of the Closing
Date:
| (a) |
Due
Organization and Authority.
The Company is a national banking
association duly organized, validly existing and in good standing
under
the laws of the United States and has all licenses necessary to carry
on
its business as now being conducted and is licensed, qualified and
in good
standing in each state where a Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct
business of the type conducted by the Company, and in any event the
Company is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan
and
the servicing of such Mortgage Loan in accordance with the terms
of this
Agreement; the Company has the full power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including
all
instruments of transfer to be delivered pursuant to this Agreement)
by the
Company and the consummation of the transactions contemplated hereby
have
been duly and validly authorized; this Agreement evidences the valid,
binding and enforceable obligation of the Company; and all requisite
action has been taken by the Company to make this Agreement valid
and
binding upon the Company in accordance with its terms;
|
| (b) |
Ordinary
Course of Business.
The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business
of
the Company, who is in the business of selling and servicing loans,
and
the transfer, assignment and conveyance of the Mortgage Notes and
the
Mortgages by the Company pursuant to this Agreement are not subject
to the
bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
|
| (c) |
No
Conflicts.
Neither the execution and delivery
of this
Agreement, the acquisition of the Mortgage Loans by the Company,
the sale
of the Mortgage Loans to the Purchaser or the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of this Agreement will conflict with or result in a breach of any
of the
terms, articles of incorporation or by-laws or any legal restriction
or
any agreement or instrument to which the Company is now a party or
by
which it is bound, or constitute a default or result in the violation
of
any law, rule, regulation, order, judgment or decree to which the
Company
or its property is subject, or impair the ability of the Purchaser
to
realize on the Mortgage Loans, or impair the value of the Mortgage
Loans;
|
21
| (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 a HUD approved mortgagee and is in good standing
to
sell mortgage loans to and service mortgage loans for Xxxxxx Mae
or
Xxxxxxx Mac, and no event has occurred, including but not limited
to a
change in insurance coverage, which would make the Company unable
to
comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or
which
would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
|
| (e) |
Reasonable
Servicing Fee.
The Company acknowledges and
agrees that
the Servicing Fee represents reasonable compensation for performing
such
services and that the entire Servicing Fee shall be treated by the
Company, for accounting and tax purposes, as compensation for the
servicing and administration of the Mortgage Loans pursuant to this
Agreement;
|
| (f) |
Ability
to Perform.
The Company does not believe,
nor does it
have any reason or cause to believe, that it cannot perform each
and every
covenant contained in this Agreement. TheCompany
is solvent and the sale of the Mortgage Loans will not cause the
Company
to become insolvent. The sale of the Mortgage Loans is not undertaken
to
hinder, delay or defraud any of the Company's creditors;
|
| (g) |
No
Litigation Pending.
There is no action, suit, proceeding
or
investigation pending or threatened against the Company which, either
in
any one instance or in the aggregate, may result in any material
adverse
change in the business, operations, financial condition, properties
or
assets of the Company, or in any material impairment of the right
or
ability of the Company to carry on its business substantially as
now
conducted, or in any material liability on the part of the Company,
or
which would draw into question the validity of this Agreement or
the
Mortgage Loans or of any action taken or to be contemplated herein,
or
which would be likely to impair materially the ability of the Company
to
perform under the terms of this Agreement;
|
| (h) |
No
Consent Required.
No consent, approval, authorization
or
order of any court or governmental agency or body is required for
the
execution, delivery and performance by the Company of or compliance
by the
Company with this Agreement or the sale of the Mortgage Loans as
evidenced
by the consummation of the transactions contemplated by this Agreement,
or
if required, such approval has been obtained prior to the Closing
Date;
|
22
| (i) |
Selection
Process.
The Mortgage Loans were selected
from
among the outstanding adjustable rate one- to four-family mortgage
loans
in the Company's mortgage banking portfolio at the Closing Date as
to
which the representations and warranties set forth in Section 3.02
could
be made and such selection was not made in a manner so as to affect
adversely the interests of the Purchaser;
|
| (j) |
No
Untrue Information.
Neither this Agreement nor any
statement,
report or other document furnished or to be furnished pursuant to
this
Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of fact or omits to state a fact necessary
to make the statements contained therein not misleading;
|
| (k) |
Sale
Treatment.
The Company has determined that
the
disposition of the Mortgage Loans pursuant to this Agreement will
be
afforded sale treatment for accounting and tax
purposes;
|
| (l) |
No
Material Change.
There has been no material adverse
change
in the business, operations, financial condition or assets of the
Company
since the date of the Company’s most recent financial statements;
|
| (m) |
No
Brokers’ Fees.
The Company has not dealt with
any broker,
investment banker, agent or other Person that may be entitled to
any
commission or compensation in the connection with the sale of the
Mortgage
Loans; and
|
| (n) |
MERS.
The Company is a member of MERS
in good
standing.
|
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the Closing Date:
| (a) |
Mortgage
Loans as Described.
|
23
| (b) |
The
information set forth in the Mortgage Loan Schedule attached hereto
as
Exhibit A and the information contained on the Data File Fields
contained
on the Data File delivered to the Purchaser are true and correct; provided
that the Company makes no representation or warranty as to the
accuracy of
Unverified Information;
Payments
Current.
|
|
All
payments required to be made up to the Cut-off Date for the
Mortgage Loan
under the terms of the Mortgage Note have been made and credited.
No
payment under any Mortgage Loan has been thirty (30) days delinquent
more
than one (1) time within twelve (12) months prior to the Closing
Date;
|
|
(c)
|
No
Outstanding Charges.
There are no defaults in complying
with
the terms of the Mortgages, and all taxes, governmental assessments,
insurance premiums, leasehold payments, water, sewer and municipal
charges, which previously became due and owing have been paid, or
an
escrow of funds has been established in an amount sufficient to pay
for
every such item which remains unpaid and which has been assessed
but is
not yet due and payable. The Company has not advanced funds, or induced,
or solicited directly or indirectly, the payment of any amount required
under the Mortgage Loan, except for interest accruing from the date
of the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the day which precedes by one 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 or
registered with the MERS System, if necessary, to protect the interests
of
the Purchaser and is retained by the Company in the Retained Mortgage
File; and the related Mortgage Note which has been delivered to the
Custodian. The substance of any such waiver, alteration or modification
has been approved by the issuer of any related PMI Policy and the
title
insurer, to the extent required by the policy, and its terms are
reflected
on the related Mortgage Loan Schedule. No Mortgagor has been released,
in
whole or in part, except in connection with an assumption agreement
approved by the issuer of any related PMI Policy and the title insurer,
to
the extent required by the policy, and which assumption agreement
is part
of the Custodial Mortgage File delivered to the Custodian and the
terms of
which are reflected in the related Mortgage Loan Schedule;
|
24
| (e) |
No
Defenses.
The Mortgage Loan is not subject
to any
right of rescission, set-off, counterclaim or defense, including
without
limitation the defense of usury, nor will the operation of any of
the
terms of the Mortgage Note or the Mortgage, or the exercise of any
right
thereunder, render either the Mortgage Note or the Mortgage unenforceable,
in whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense
of
usury, and no such right of rescission, set-off, counterclaim or
defense
has been asserted with respect thereto;
|
| (f) |
No
Satisfaction of Mortgage.
|
| (g) |
Validity
of Mortgage Documents.
The Mortgage Note and the Mortgage
and
related documents are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its
terms.
All parties to the Mortgage Note and the Mortgage had legal capacity
to
enter into the Mortgage Loan and to execute and deliver the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been
duly
and properly executed by such parties. The Company has reviewed all
documents constituting the Retained Mortgage File and Custodial Mortgage
File and has made such inquiries as it deems necessary to make and
confirm
the accuracy of the representations set forth herein;
With respect to each Cooperative
Loan, the
Mortgage Note, the Mortgage, the Pledge Agreement, and related documents
are genuine, and each is the legal, valid and binding obligation
of the
maker thereof enforceable in accordance with its terms. All parties
to the
Mortgage Note, the Mortgage, the Pledge Agreement, the Proprietary
Lease,
the Stock Power, Recognition Agreement and the Assignment of Proprietary
Lease had legal capacity to enter into the Mortgage Loan and to execute
and deliver such documents, and such documents have been duly and
properly
executed by such parties;
|
| (h) |
No
Fraud.
No error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage
Loan
has taken place on the part of the Company, or the Mortgagor (except
with
respect to the accuracy of Unverified Information), or to the best
of the
Company’s knowledge, any appraiser, any builder, or any developer, or any
other party involved in the origination of the Mortgage Loan or in
the
application of any insurance in relation to such Mortgage Loan;
|
25
| (i) |
Compliance
with Applicable Laws.
Any and all requirements of any
federal,
state or local law including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit protection and
privacy,
equal credit opportunity, disclosure or predatory and abusive lending
laws
applicable to the Mortgage Loan have been complied with. All inspections,
licenses and certificates required to be made or issued with respect
to
all occupied portions of the Mortgaged Property and, with respect
to the
use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
|
| (j) |
Location
and Type of Mortgaged Property.
The Mortgaged Property is located
in the
state identified in the related Mortgage Loan Schedule and consists
of a
contiguous parcel of real property with a detached single family
residence
erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a condominium project, or a Cooperative Apartment,
or
an individual unit in a planned unit development or a townhouse,
provided,
however, that any condominium project or planned unit development
shall
conform to the applicable Xxxxxx Xxx or Xxxxxxx Mac requirements,
the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable, regarding such dwellings, and no residence or dwelling
is a
mobile home or manufactured dwelling. As of the respective appraisal
date
for each Mortgaged Property, any Mortgaged Property being used for
commercial purposes conforms to the Company Underwriting Guidelines
(other
than the exception identified for Exception Mortgage Loans) or the
Third-Party Underwriting Guidelines, as applicable and, to the best
of the
Company’s knowledge, since the date of such appraisal, no portion of the
Mortgaged Property was being used for commercial purposes outside
of the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable;
|
| (k) |
Valid
First Lien.
The Mortgage is a valid, subsisting
and
enforceable first lien on the Mortgaged Property, including all buildings
on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located
in or
annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Mortgage
is subject only to:
|
26
|
(2)
covenants, conditions and restrictions, rights of way, easements
and other
matters of the public record as of the date of recording acceptable
to
mortgage lending institutions generally and specifically referred
to in
the lender's title insurance policy delivered to the originator
of the
Mortgage Loan and (i) referred to or otherwise considered in
the appraisal
made for the originator of the Mortgage Loan and (ii) which
do not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
(3)
other
matters to which like
properties are commonly subject which do not materially interfere
with the
benefits of the security intended to be provided by the mortgage
or the
use, enjoyment, value or marketability of the related Mortgaged
Property.
|
|
Any
security agreement, chattel mortgage or equivalent document
related to and
delivered in connection with the Mortgage Loan establishes
and creates a
valid, subsisting and enforceable first lien and first priority
security
interest on the property described therein and the Company
has full right
to sell and assign the same to the Purchaser;
With respect to each Cooperative
Loan,
each Pledge Agreement creates a valid, enforceable and subsisting
first
security interest in the Cooperative Shares and Proprietary
Lease, subject
only to (i) the lien of the related Cooperative for unpaid
assessments
representing the Mortgagor’s pro rata share of the Cooperative’s payments
for its blanket mortgage, current and future real property
taxes,
insurance premiums, maintenance fees and other assessments
to which like
collateral is commonly subject and (ii) other matters to which
like
collateral is commonly subject which do not materially interfere
with the
benefits of the security intended to be provided by the Pledge
Agreement;
provided, however, that the appurtenant Proprietary Lease may
be
subordinated or otherwise subject to the lien of any mortgage
on the
Project;
|
| (l) |
Full
Disbursement of Proceeds.
The proceeds of the Mortgage
Loan have
been fully disbursed, except for escrows established or created due
to
seasonal weather conditions, and there is no requirement for future
advances thereunder. All costs, fees and expenses incurred in making
or
closing the Mortgage Loan and the recording of the Mortgage were
paid, and
the Mortgagor is not entitled to any refund of any amounts paid or
due
under the Mortgage Note or Mortgage;
|
| (m) |
Consolidation
of Future Advances.
Any future advances made prior
to the
Cut-off Date, have been consolidated with the outstanding principal
amount
secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term
reflected on the related Mortgage Loan Schedule. The lien of the
Mortgage
securing the consolidated principal amount is expressly insured as
having
first lien priority by a title insurance policy, an endorsement to
the
policy insuring the mortgagee’s consolidated interest or by other title
evidence acceptable to Xxxxxx Mae or Xxxxxxx Mac; the consolidated
principal amount does not exceed the original principal amount of
the
Mortgage Loan; the Company shall not make future advances after the
Cut-off Date;
|
27
| (n) |
Ownership.
The Company is the sole owner
of record
and holder of the Mortgage Loan and the related Mortgage Note and
the
Mortgage are not assigned or pledged, and the Company has good and
marketable title thereto and has full right and authority to transfer
and
sell the Mortgage Loan to the Purchaser. The Company is transferring
the
Mortgage Loan free and clear of any and all encumbrances, liens,
pledges,
equities, participation interests, claims, charges or security interests
of any nature encumbering such Mortgage Loan;
|
| (o) |
Origination/Doing
Business.
The Mortgage Loan was originated
by a
savings and loan association, a savings bank, a commercial bank,
a credit
union, an insurance company, or similar institution that is supervised
and
examined by a federal or state authority or by a mortgagee approved
by the
Secretary of Housing and Urban Development pursuant to Sections 203
and
211 of the National Housing Act. All parties which have had any interest
in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed
of
such interest, were) (1) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) organized under the laws of such state,
or
(3) qualified to do business in such state, or (4) federal savings
and
loan associations or national banks having principal offices in such
state, or (5) not doing business in such state;
|
| (p) |
LTV,
PMI Policy.
No Mortgage Loan has an LTV greater
than
95%. Except as set forth on the related Data File, each Mortgage
Loan with
an LTV greater than 80% at the time of origination, a portion of
the
unpaid principal balance of the Mortgage Loan is and will be insured
as to
payment defaults by a PMI Policy. If the Mortgage Loan is insured
by a PMI
Policy which is not an LPMI Policy, the coverage will remain in place
until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12
USC
§4901, et seq. All provisions of such PMI Policy or LPMI Policy have
been
and are being complied with, such policy is in full force and effect,
and
all premiums due thereunder have been paid. The Qualified Insurer
has a
claims paying ability acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any
Mortgage Loan subject to a PMI Policy or LPMI Policy obligates the
Mortgagor or the Company to maintain the PMI Policy or LPMI Policy,
as
applicable, 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;
|
28
| (q) |
Title
Insurance.
The Mortgage Loan is covered
by an ALTA
lender's title insurance policy (or in the case of any Mortgage Loan
secured by a Mortgaged Property located in a jurisdiction where such
policies are generally not available, an opinion of counsel of the
type
customarily rendered in such jurisdiction in lieu of title insurance)
or
other generally acceptable form of policy of insurance acceptable
to
Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx
Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the
original
principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of subclause (k) of this Section
3.02, and against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing
for
adjustment to the Mortgage Interest Rate and Monthly Payment. The Company is the sole insured of such lender's
title insurance
policy, and such lender's title insurance policy is in full force
and
effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been
made
under such lender's title insurance policy, and no prior holder of
the
Mortgage, including the Company, has done, by act or omission, anything
which would impair the coverage of such lender's title insurance
policy;
|
| (r) |
No
Defaults.
There is no default, breach,
violation or
event of acceleration existing under the Mortgage or the Mortgage
Note and
no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation
or event of acceleration, and neither the Company nor its predecessors
have waived any default, breach, violation or event of
acceleration;
|
| (s) |
No
Mechanics' Liens.
There are no mechanics' or similar
liens
or claims which have been filed for work, labor or material (and
no rights
are outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens
prior
to, or equal or coordinate with, the lien of the related Mortgage
which
are not insured against by the title insurance policy referenced
in
subclause (q) of this Section 3.02;
|
29
| (t) |
Location
of Improvements; No Encroachments.
Except as insured against by
the title
insurance policy referenced in subclause (q) of this Section 3.02,
all
improvements which were considered in determining the Appraised Value
of
the Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property and no improvements on
adjoining properties encroach upon the Mortgaged Property. No improvement
located on or being part of the Mortgaged Property is in violation
of any
applicable zoning law or regulation;
|
| (u) |
Payment
Terms.
Except with respect to the Interest
Only
Mortgage Loans, principal payments commenced no more than sixty (60)
days
after the funds were disbursed to the Mortgagor in connection with
the
Mortgage Loan. Except with respect to the Interest Only Mortgage
Loans,
each Mortgage Loan is payable in equal monthly installments of principal
and interest, with interest calculated and payable in arrears, sufficient
to amortize the Mortgage Loan fully by the stated maturity date set
forth
in the Mortgage Note over an original term to maturity of not more
than
thirty (30) years. As to each Adjustable Rate Mortgage Loan on each
applicable Adjustment Date, the Mortgage Interest Rate will be adjusted
to
equal the sum of the Index plus the applicable Gross Margin, rounded
up or
down to the nearest multiple of 0.125% indicated by the Mortgage
Note;
provided that the Mortgage Interest Rate will not increase or decrease
by
more than the Periodic Interest Rate Cap on any Adjustment Date,
and will
in no event exceed the Maximum Mortgage Interest Rate or be lower
than the
Minimum Mortgage Interest Rate listed on the Mortgage Note for such
Mortgage Loan. As to each Adjustable Rate Mortgage Loan that is not
an
Interest Only Mortgage Loan, each Mortgage Note requires a monthly
payment
which is sufficient, during the period prior to the first adjustment
to
the Mortgage Interest Rate, to fully amortize the outstanding principal
balance as of the first day of such period over the then remaining
term of
such Mortgage Note and to pay interest at the related Mortgage Interest
Rate. With respect to each Interest Only Mortgage Loan, the interest-only
period shall not exceed fifteen (15) years (or such other period
specified
on the related Data File) and following the expiration of such
interest-only period, the remaining Monthly Payments shall be sufficient
to fully amortize the original principal balance over the remaining
term
of the Mortgage Loan and to pay interest at the related Mortgage
Interest
Rate. As to each Adjustable Rate Mortgage Loan, if the related Mortgage
Interest Rate changes on an Adjustment Date or, with respect to an
Interest Only Mortgage Loan, on an Adjustment Date following the
related
interest-only period, the then outstanding principal balance will
be
reamortized over the remaining life of such Mortgage Loan. No Adjustable
Rate Mortgage Loan contains terms or provisions which would result
in
negative amortization;
|
30
| (v) |
Customary
Provisions.
The Mortgage and related Mortgage
Note
contain customary and enforceable provisions such as to render the
rights
and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of
trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. There
is no
homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage;
|
| (w) |
Occupancy
of the Mortgaged Property.
As of the date of origination,
the
Mortgaged Property was lawfully occupied under applicable law;
|
| (x) |
No
Additional Collateral.
Except in the case of a Pledged
Asset
Mortgage Loan and as indicated on the related Data File, the Mortgage
Note
is not and has not been secured by any collateral, pledged account
or
other security except the lien of the corresponding Mortgage and
the
security interest of any applicable security agreement or chattel
mortgage
referred to in subclause (k) of this Section
3.02;
|
| (y) |
Deeds
of Trust.
In the event the Mortgage constitutes
a
deed of trust, a trustee, duly qualified under applicable law to
serve as
such, has been properly designated and currently so serves and is
named in
the Mortgage, and no fees or expenses are or will become payable
by the
mortgagee to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
|
| (z) |
Acceptable
Investment.
The Company has no knowledge
of any
circumstances or conditions with respect to the Mortgage Loan, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing
that
can reasonably be expected to cause private institutional investors
to
regard the Mortgage Loan as an unacceptable investment, cause the
Mortgage
Loan to become delinquent, or adversely affect the value or marketability
of the Mortgage Loan;
|
| (aa) |
Transfer
of Mortgage Loans.
If the Mortgage Loan is not a
MERS
Mortgage Loan, the Assignment of Mortgage, upon the insertion of
the name
of the assignee and recording information, is in recordable form
and is
acceptable for recording under the laws of the jurisdiction in which
the
Mortgaged Property is located;
|
31
| (bb) |
Mortgaged
Property Undamaged.
The Mortgaged Property is undamaged
by
waste, fire, earthquake or earth movement, windstorm, flood, tornado
or
other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended;
|
| (cc) |
Collection
Practices; Escrow Deposits.
The origination, servicing and
collection
practices used with respect to the Mortgage Loan have been in accordance
with Accepted Servicing Practices, and have been in all material
respects
legal and proper. With respect to escrow deposits and Escrow Payments,
all
such payments are in the possession of the Company and there exist
no
deficiencies in connection therewith for which customary arrangements
for
repayment thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law. No escrow
deposits or Escrow Payments or other charges or payments due the
Company
have been capitalized under the Mortgage Note;
|
| (dd) |
No
Condemnation.
There is no proceeding pending
or to the
best of the Company’s knowledge threatened for the total or partial
condemnation of the related Mortgaged Property;
|
| (ee) |
The
Appraisal.
The Servicing File for each Mortgage
Loan
includes an appraisal of the related Mortgaged Property. As to each
Time$aver® Mortgage Loan, the appraisal may be from the original of the
existing Company-serviced loan, which was refinanced via such Time$aver®
Mortgage Loan. The appraisal was conducted by an appraiser who had
no
interest, direct or indirect, in the Mortgaged Property or in any
loan
made on the security thereof; and whose compensation is not affected
by
the approval or disapproval of the Mortgage Loan, and the appraisal
and
the appraiser both satisfy the applicable requirements of Title XI
of the
Financial Institution Reform, Recovery, and Enforcement Act of 1989
and
the regulations promulgated thereunder, all as in effect on the date
the
Mortgage Loan was originated;
|
32
| (ff) |
Insurance.
The Mortgaged Property securing
each
Mortgage Loan is insured by an insurer acceptable to Xxxxxx Xxx or
Xxxxxxx
Mac against loss by fire and such hazards as are covered under a
standard
extended coverage endorsement and such other hazards as are customary
in
the area where the Mortgaged Property is located pursuant to insurance
policies conforming to the requirements of Section 4.10, in an amount
which is at least equal to the lesser of (i) 100% of the insurable
value,
on a replacement cost basis, of the improvements on the related Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance
of
the Mortgage Loan or (b) an amount such that the proceeds of such
insurance shall be sufficient to prevent the application to the Mortgagor
or the loss payee of any coinsurance clause under the policy. If
the
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the project. If the improvements
on the Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is in
effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (A) the outstanding principal
balance
of the Mortgage Loan, (B) the full insurable value and (C) the maximum
amount of insurance which was available under the Flood Disaster
Protection Act of 1973, as amended. All individual insurance policies
contain a standard mortgagee clause naming the Company and its successors
and assigns as mortgagee, and all premiums thereon have been paid.
The
Mortgage obligates the Mortgagor thereunder to maintain a hazard
insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's
failure
to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. The hazard insurance policy
is
the valid and binding obligation of the insurer, is in full force
and
effect, and will be in full force and effect and inure to the benefit
of
the Purchaser upon the consummation of the transactions contemplated
by
this Agreement. The Company has not acted or failed to act so as
to impair
the coverage of any such insurance policy or the validity, binding
effect
and enforceability thereof;
|
| (gg) |
Servicemembers
Civil Relief Act.
The Mortgagor has not notified
the
Company, and the Company has no knowledge of any relief requested
or
allowed to the Mortgagor under the Servicemembers Civil Relief Act,
as
amended;
|
| (hh) |
No
Balloon Payments, Graduated Payments or Contingent
Interests.
The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature. No Mortgage
Loan has a balloon payment feature;
|
33
| (ii) |
No
Construction Loans.
No Mortgage Loan was made in
connection
with (i) the construction or rehabilitation of a Mortgage Property
or (ii)
facilitating the trade-in or exchange of a Mortgaged Property other
than a
construction-to-permanent loan which has converted to a permanent
Mortgage
Loan;
|
| (jj) |
Underwriting.
(i)
Each Company Mortgage Loan was underwritten in accordance with
the Company
Underwriting Guidelines;
(ii)
Each Third-Party Mortgage Loan was underwritten in accordance with
the
Third-Party Underwriting Guidelines;
(iii)
Each Exception Mortgage Loan was underwritten in accordance with
the
Company Underwriting Guidelines; and
(iv)
Each Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or
Xxxxxx Mae;
|
| (kk) |
No
Bankruptcy.
No Mortgagor was a debtor in
any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan
was originated and as of the Closing Date, the Company has not received
notice that any Mortgagor is a debtor under any state or federal
bankruptcy or insolvency
proceeding;
|
| (ll) |
The
Mortgagor.
The Mortgagor is one or more
natural
Persons and/or an Illinois land trust or a “living trust” and such “living
trust” is in compliance with the Company Underwriting Guidelines (other
than the exception identified for Exception Mortgage Loans) or the
Third-Party Underwriting Guidelines, as applicable;
|
| (mm) |
Interest
Calculation.
Interest on each Mortgage Loan
is
calculated on the basis of a 360-day year consisting of twelve 30-day
months;
|
| (nn) |
Environmental
Status.
There is no pending action or
proceeding
directly involving the Mortgaged Property of which the Company is
aware in
which compliance with any environmental law, rule or regulation is
an
issue; and to the best of the Company’s knowledge, nothing further remains
to be done to satisfy in full all requirements of each such law,
rule or
regulation constituting a prerequisite to the use and enjoyment of
the
Mortgaged Property;
|
34
| (oo) |
No
High Cost Loans.
No Mortgage Loan is a High Cost
Loan or
Covered Loan;
|
| (pp) |
Anti-Money
Laundering Laws.
The Company has complied with
all
applicable anti-money laundering laws and regulations, including
without
limitation the USA Patriot ACT of 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 indentity of the applicable Mortgagor
and
the origin of assets used by the said Mortgagor to purchase the related
Mortgaged Property, and maintains sufficient information to identify
the
applicable Mortgagor for purposes of the Anti-Money Laundering Laws;
|
| (qq) |
Single
Premium Credit Life Insurance.
No Mortgagor was required to
purchase any
single premium credit insurance policy (e.g. life, disability, accident,
unemployment or health insurance product) or debt cancellation agreement
as a condition of obtaining the extension of credit. No Mortgagor
obtained
a prepaid single premium credit insurance policy (e.g. life, disability,
accident, unemployment or health insurance product) as part of the
origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies or debt
cancellation agreements as part of the origination of, or as a condition
to closing, such Mortgage Loan;
|
| (rr) |
Buydown
Mortgage Loans.
With respect to each Mortgage
Loan that is
a Buydown Mortgage Loan:
(i)
On
or before the date of
origination of such Mortgage Loan, the Company and the Mortgagor,
or the
Company, the Mortgagor and the seller of the Mortgaged Property or
a third
party entered into a Buydown Agreement. The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments that,
when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due on
such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor to
qualify
for the Buydown Mortgage Loan. The effective interest rate of a Buydown
Mortgage Loan if less than the interest rate set forth in the related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate will
be
equal to the interest rate as set forth in the related Mortgage Note.
The
Buydown Mortgage Loan satisfies the requirements of the Company
Underwriting Guidelines (other than the exception identified for
Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as applicable;
|
35
|
(ii)
The
Mortgage and Mortgage Note
reflect the permanent payment terms rather than the payment terms
of the
Buydown Agreement. The Buydown Agreement
provides for the payment by the Mortgagor of the full amount of
the
Monthly Payment on any Due Date that the Buydown Funds are available.
The
Buydown Funds were not used to reduce the original principal balance
of
the Mortgage Loan or to increase the Appraised Value of the Mortgage
Property when calculating the Loan-to-Value Ratios for purposes
of the
Agreement and, if the Buydown Funds were provided by the Company
and if
required under the Company Underwriting Guidelines (other than
the
exception identified for Exception Mortgage Loans) or the Third-Party
Underwriting Guidelines, as applicable, the terms of the Buydown
Agreement
were disclosed to the appraiser of the Mortgaged Property;
(iii) The
Buydown Funds may not be
refunded to the Mortgagor unless the Mortgagor makes a principal
payment
for the outstanding balance of the Mortgage Loan;
(iv)
As
of the date of origination of the
Mortgage Loan, the provisions of the related Buydown Agreement
complied
with the requirements of the Company Underwriting Guidelines (other
than
the exception identified for Exception Mortgage Loans) or the Third-Party
Underwriting Guidelines, as applicable, regarding buydown agreements;
|
| (ss) |
Cooperative
Loans.
With respect to each Cooperative
Loan
(i)
The
Cooperative Shares
are held by a Person as a tenant-stockholder in a Cooperative. Each
original UCC financing statement, continuation statement or other
governmental filing or recordation necessary to create or preserve
the
perfection and priority of the first lien and security interest in
the
Cooperative Loan and Proprietary Lease has been timely and properly
made.
Any security agreement, chattel mortgage or equivalent document related
to
the Cooperative Loan and delivered to Purchaser or its designee
establishes in Purchaser a valid and subsisting perfected first lien
on
and security interest in the Mortgaged Property described therein,
and
Purchaser has full right to sell and assign the same. The Proprietary
Lease term expires no less than five years after the Mortgage Loan
term or
such other term acceptable to Xxxxxx Xxx, Xxxxxxx Mac, the Company
Underwriting Guidelines (other than the exception identified for
Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
|
36
|
(ii)
A
Cooperative Lien Search has
been made by a company competent to make the same which company
is
acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business
in
the jurisdiction where the Cooperative is located;
(iii)
(a) The term of the related Proprietary Lease is not less than
the terms
of the Cooperative Loan; (b) there is no provision in any Proprietary
Lease which requires the Mortgagor to offer for sale the Cooperative
Shares owned by such Mortgagor first to the Cooperative; (c)
there is no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
216 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and
owns the
Project either in fee simple or under a leasehold that complies
with the
requirements of the Xxxxxx Mae guidelines, Xxxxxxx Mac guidelines,
the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable; such title is free and clear of any adverse liens
or
encumbrances, except the lien of any blanket mortgage;
(iv)
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor; and
(v) Each
Stock Power (i) has all signatures guaranteed or (ii) if all
signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related
Cooperative
Loan;
|
| (tt) |
Delivery
of Custodial Mortgage Files.
The Mortgage Note, Assignment
of Mortgage
and any other documents required to be delivered by the Company have
been
delivered to the Custodian in accordance with this Agreement. The
Company
is in possession of a complete, true and accurate Retained Mortgage
File
in compliance with Exhibit C, except for such documents the originals
of
which have been delivered to the Custodian or for such documents
where the
originals of which have been sent for recordation;
|
37
| (uu) |
Credit
Reporting.
With respect to each Mortgage
Loan, the
Company has furnished complete information on the related borrower
credit
files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing
regulations;
|
| (vv) |
Contents
of Retained Mortgage File.
The Retained Mortgage File contains
the
Mortgage Loan Documents listed as items 6 through 12 of Exhibit C
attached
hereto, except for such documents where the originals of which have
been
sent for recordation;
|
| (ww) |
Pledged
Asset Mortgage Loan.
With respect to a Pledged Asset
Mortgage
Loan:
(i)
The
Pledge Holder has a rating of at least “AA” (or the equivalent) or better
from at least two Rating Agencies and the Pledge Holder is obligated
to
give the beneficiary of each Letter of Credit at least sixty (60)
days
notice of any non-renewal of any Letter of Credit;
(ii)
With
respect to each Pledged Asset
Mortgage Loan, the Company is the named beneficiary and no Person
has
drawn any funds against such Letter of Credit;
(iii)
Each Letter of Credit is for an amount at least equal to an LTV
of 20% of
the lower of the purchase price or the Appraised Value of the related
Mortgaged Property;
(iv) As
of the Closing Date, the Company has complied with all the requirements
of
any Letter of Credit, and each Letter of Credit is a valid and enforceable
obligation of the Pledge Holder;
(v) The
Company has the right to draw on each Letter of Credit if the related
Pledged Asset Mortgage Loan becomes ninety (90) days or more delinquent
and to apply such proceeds as a partial prepayment
thereon;
(vi) The
Company has not received notice of any non-renewal of any Letter
of
Credit;
(vii) Upon
a default by the Pledge Holder, the Company will have a perfected
first
priority security interest in the assets pledged to secure the Letter
of
Credit and has the right to obtain possession thereof and the right
to
liquidate such assets and apply the proceeds thereof to prepay the
related
Pledged Asset Mortgage Loan; and
|
38
|
(viii)
The
Letter of Credit is required to be in effect (either for its
original term
or through renewal) until such time as all amounts owed under the
related Pledged Asset Mortgage Loan by the related Mortgagor
are less than
80% of the lesser of the Purchase Price or the Appraised Value
of the
related Mortgaged
Property;
|
| (xx) |
Indiana.
There is no Mortgage Loan that
was
originated on or after January 1, 2005, which is a “high cost home loan”
as defined under the Indiana Home Loan Practices Act (I.C. 24-9);
and
|
| (yy) |
Leasehold
Estate.
With respect to each Mortgage
Loan secured
in whole or in part by the interest of the Mortgagor as a lessee
under a
ground lease of the related Mortgaged Property (a “Ground Lease”) and not
by a fee interest in such Mortgaged Property:
(i) The
Mortgagor is the owner of a valid and subsisting interest as tenant
under
the Ground Lease;
(ii) The Ground Lease is in full
force and
effect;
(iii) The
Mortgagor is not in default under any provision of the
lease;
(iv) The
lessor under the Ground Lease is not in default under any of the
terms or
provisions thereof on the part of the lessor to be observed or
performed;
|
39
| (v) The term of the Ground Lease exceeds the maturity date of the related Mortgage Loan by at least five (5) years; |
| (vi) The Mortgagee under the Mortgage Loan is given at least sixty (60) days’ notice of any default and an opportunity to cure any defaults under the Ground Lease or to take over the Mortgagor’s rights under the Ground Lease; |
| (vii) The Ground Lease does not contain any default provisions that could result in forfeiture or termination of the Ground Lease except for non-payment of the Ground Lease or a court order; |
| (viii) The Ground Lease provides that the leasehold can be transferred, mortgaged and sublet an unlimited number of times either without restriction or on payment of a reasonable fee and delivery of reasonable documentation to the lessor; |
| (ix) The Ground Lease or a memorandum thereof has been recorded and by its terms permits the leasehold estate to be mortgaged; and |
| (x) The execution, delivery and performance of the Mortgage do not require consent (other than those consents which have been obtained and are in full force and effect) under, and will not contravene any provision of or cause a default under, the Ground Lease. |
Section
3.03 Repurchase.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the applicable Mortgage Loan Documents to the
Custodian and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Custodial Mortgage File
or
Retained Mortgage File. Upon discovery by either the Company or the Purchaser
of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach
shall
give prompt written notice to the other.
Within
ninety (90) days of the earlier of either discovery by or notice to the Company
of any breach of a representation or warranty which materially and adversely
affects the value of the Mortgage Loans, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if such breach cannot
be cured, the Company shall, at the Purchaser's option, repurchase such Mortgage
Loan at the Repurchase Price. In the event that a breach shall involve any
representation or warranty set forth in Section 3.01, and such breach cannot
be
cured within
ninety (90) days of the earlier of either discovery by or notice to the Company
of such breach, all of the Mortgage Loans shall, at the Purchaser's option,
be
repurchased by the Company at the Repurchase Price. However, if the breach
shall
involve a representation or warranty set forth in Section 3.02 and the Company
discovers or receives notice of any such breach within 120 days of the Closing
Date, the Company shall, if the breach cannot be cured, at the Purchaser's
option and provided that the Company has a Qualified Substitute Mortgage Loan,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans, provided that any such substitution shall
be
effected not later than 120 days after the Closing Date. If the Company has
no
Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan within ninety (90) days of the written notice of the breach or the failure
to cure, whichever is later. Any repurchase of a Mortgage Loan or Loans pursuant
to the foregoing provisions of this Section 3.03 shall be accomplished by
deposit in the Custodial Account of the amount of the Repurchase Price for
distribution to Purchaser on the Remittance Date immediately following the
Principal Prepayment Period in which such Repurchase Price is received, after
deducting therefrom any amount received in respect of such repurchased Mortgage
Loan or Loans and being held in the Custodial Account for future distribution.
40
At
the
time of repurchase or substitution, the Purchaser and the Company shall arrange
for the reassignment of the Deleted Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to
the
Deleted Mortgage Loan. If the Company repurchases a Mortgage Loan that is a
MERS
Mortgage Loan, the Company shall cause MERS to designate on the MERS System
to
remove the Purchaser as the beneficial holder with respect to such Mortgage
Loan. In the event of a repurchase or substitution, the Company shall,
simultaneously with such reassignment, give written notice to the Purchaser
that
such repurchase or substitution has taken place, amend the respective Mortgage
Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the respective Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Company shall be deemed to have
made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required
by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03.
No
substitution will be made in any calendar month after the Determination Date
for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan
or
Loans in the month following the date of such substitution. Monthly Payments
due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. With respect to any Deleted Mortgage Loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter
be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
41
For
any
month in which the Company substitutes a Qualified Substitute Mortgage Loan
for
a Deleted Mortgage Loan, the Company shall determine the amount (if any) by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Company in the month of substitution pursuant to Section
5.01. Accordingly, on the date of such substitution, the Company shall deposit
from its own funds into the Custodial Account an amount equal to the amount
of
such shortfall.
In
addition to such repurchase or substitution obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the representations and warranties contained in this Agreement. It is understood
and agreed that the obligations of the Company set forth in this Section 3.03
to
cure, substitute for or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 3.03 constitute the sole remedies
of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Company relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice
thereof by the Company to the Purchaser, (ii) failures by the Company to cure
such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans and shall have full power and authority, acting alone or through the
utilization of a Subservicer or a Subcontractor, to do any and all things in
connection with such servicing and administration which the Company may deem
necessary or desirable, consistent with the terms of this Agreement and with
Accepted Servicing Practices. The Company shall be responsible for any and
all
acts of a Subservicer and a Subcontractor, and the Company’s utilization of a
Subservicer or a Subcontractor shall in no way relieve the liability of the
Company under this Agreement.
42
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company's reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided, however, the Company shall
not make any future advances, other than Servicing Advances, with respect to
a
Mortgage Loan; and provided further, that the Company shall not, unless it
has
first obtained the consent of the Purchaser, permit any modification with
respect to any Mortgage Loan that would change the Mortgage Interest Rate,
defer
or forgive the payment of principal (except for actual payments of principal),
reduce or increase the outstanding principal balance (except for reductions
resulting from actual payments of principal), accept a deed in lieu of
foreclosure or change the final maturity date on such Mortgage Loan or accept
substitution of additional collateral or release any collateral for a Mortgage
Loan. The Company shall request written consent from the Purchaser to permit
such a modification and the Purchaser shall provide written consent or notify
the Company of its objection to such modification within three (3) Business
Days
of its receipt of the Company's request. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment
has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5.03, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances
to
the same extent as for all other advances made pursuant to Section 5.03. Without
limiting the generality of the foregoing, the Company shall continue, and is
hereby authorized and empowered, to execute and deliver on behalf of itself
and
the Purchaser, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Company, the Purchaser shall furnish the Company with any powers
of attorney and other documents necessary or appropriate to enable the Company
to carry out its servicing and administrative duties under this Agreement.
The
Company is authorized and empowered by the Purchaser, in its own name, when
the
Company believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS System, or cause the removal from MERS registration
of
any Mortgage Loan on the MERS System, to execute and deliver, on behalf of
the
Purchaser, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage in
the
name of MERS, solely as nominee for the Purchaser and its successors and
assigns.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser's reliance on the Company.
The
Company shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which
the
related Cooperative Apartment is located, to perfect and protect the security
interest and lien of the Purchaser.
43
Section
4.02 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.01 is not paid when the same becomes due and payable, or in the event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. In the event that any payment
due under any Mortgage Loan is not postponed pursuant to Section 4.01 and
remains delinquent for a period of 90 days or any other default continues for
a
period of ninety (90) days beyond the expiration of any grace or cure period,
the Company shall (a) act in the best interests of the Purchaser, (b) commence
foreclosure proceedings, provided that the Company shall not commence
foreclosure proceedings if it receives a written notice from the Purchaser
objecting to such action, no later than the third Business Day prior to such
commencement and (c) respond to reasonable inquiries of the Purchaser with
respect to the Mortgage Loan or related REO Property. Furthermore, the Purchaser
may instruct the Company to commence foreclosure proceedings on any Mortgage
Loan for which any payment remains delinquent for a period of 120 days or more
and shall periodically advise the Purchaser, upon receipt of written request,
of
the status of such foreclosure proceedings and shall follow the Purchaser’s
instruction in connection therewith. In the event the Purchaser objects to
such
foreclosure action, the Company shall cease foreclosure actions and shall not
be
required to make Monthly Advances with respect to such Mortgage Loan, pursuant
to Section 5.03, and the Company's obligation to make such Monthly Advances
shall terminate on the 90th day referred to above. In such connection, the
Company shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Company shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration
or
preservation of any Mortgaged Property, unless it shall determine (a) that
such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05)
or
through Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be borne by the Purchaser. Upon completion
of
the inspection or review, the Company shall promptly provide the Purchaser
with
a written report of the environmental inspection.
44
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the event
(a) the environmental inspection report indicates that the Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed in
lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In the event
the Purchaser directs the Company not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Company shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property from
the
Custodial Account pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Company shall proceed diligently to collect all payments
due
under each of the Mortgage Loans when the same shall become due and payable
and
shall take special care in ascertaining and estimating Escrow Payments and
all
other charges that will become due and payable with respect to the Mortgage
Loan
and the Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Section
4.04 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received in connection
with a Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts, titled "Xxxxx Fargo Bank, N.A., in
trust for the Purchaser and/or subsequent purchasers of Mortgage Loans - P
&
I." The Custodial Account shall be established with a Qualified Depository.
Upon
request of the Purchaser and within ten (10) days thereof, the Company shall
provide the Purchaser with written confirmation of the existence of such
Custodial Account. The Custodial Account shall at all times be insured to the
fullest extent allowed by applicable law. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section 4.05.
The
Company shall deposit in the Custodial Account within two (2) Business Days
of
Company’s receipt, and retain therein, the following collections received by the
Company and payments made by the Company after the Cut-off Date, other than
payments of principal and interest due on or before the Cut-off Date, or
received by the Company prior to the Cut-off Date but allocable to a period
subsequent thereto:
(i)
all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
45
(ii)
all payments on account of interest on the Mortgage Loans adjusted to the
Mortgage Loan Remittance Rate;
(iii)
all Liquidation Proceeds;
(iv)
all Insurance Proceeds including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14), Section 4.11 and Section 4.15;
(v)
all Condemnation Proceeds which are not applied to the restoration or repair
of
the Mortgaged Property or released to the Mortgagor in accordance with
Section 4.14;
(vi)
any amount required to be deposited in the Custodial Account pursuant to Section
4.01, 5.03, 6.01 or 6.02;
(vii)
any amounts payable in connection with the repurchase of any Mortgage Loan
pursuant to Section 3.03 and all amounts required to be deposited by the
Company in connection with a shortfall in principal amount of any Qualified
Substitute Mortgage Loan pursuant to Section 3.03;
(viii)
with respect to each Principal Prepayment an amount (to be paid by the Company
out of its funds) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one month's
interest on the amount of principal so prepaid at the Mortgage Loan Remittance
Rate;
(ix)
any amounts required to be deposited by the Company pursuant to Section 4.11
in
connection with the deductible clause in any blanket hazard insurance
policy;
(x)
any
amounts received with respect to or related to any REO Property and all REO
Disposition Proceeds pursuant to Section 4.16;
(xi)
with
respect to Buydown Mortgage Loans and Subsidy Loans, an amount from the Escrow
Account that when added to the amount received from the Mortgagor for such
month, equal the full Monthly Payment due under the related Mortgage Note;
and
(xii)
with
respect to Pledged Asset Mortgage Loans, any amount required to be deposited
pursuant to Section 4.26 of this Agreement.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited in
the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company
and the Company shall be entitled to retain and withdraw such interest from
the
Custodial Account pursuant to Section 4.05.
46
Section
4.05 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i)
to make payments to the Purchaser in the amounts and in the manner provided
for
in Section 5.01;
(ii)
to reimburse itself for Monthly Advances of the Company's funds made
pursuant to Section 5.03, the Company's right to reimburse itself pursuant
to
this sub clause (ii) being limited to amounts received on the related Mortgage
Loan which represent late Monthly Payments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and such other amounts as may be collected by
the
Company respecting which any such advance was made, it being understood that,
in
the case of any such reimbursement, the Company's right thereto shall be prior
to the rights of Purchaser, except that, where the Company is required to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, the Company's
right
to such reimbursement shall be subsequent to the payment to the Purchaser of
the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iii)
to
reimburse itself for unreimbursed Servicing Advances, and for any unpaid
Servicing Fees, the Company's right to reimburse itself pursuant to this sub
clause (iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Company from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in the case of any
such
reimbursement, the Company's right thereto shall be prior to the rights of
Purchaser, except that where the Company is required to repurchase a Mortgage
Loan pursuant to Section 3.03 or 6.02, in which case the Company's right to
such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iv)
to pay itself interest on funds deposited in the Custodial Account;
(v)
to reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 8.01;
(vi)
to pay any amount required to be paid pursuant to Section 4.16 related to any
REO Property, it being understood that, in the case of any such expenditure
or
withdrawal related to a particular REO Property, the amount of such expenditure
or
withdrawal from the Custodial Account shall be limited to amounts on deposit
in
the Custodial Account with respect to the related REO Property;
47
(vii)
to
reimburse itself for any Servicing Advances or REO expenses after liquidation
of
the Mortgaged Property not otherwise reimbursed above;
(viii)
to
remove funds inadvertently placed in the Custodial Account by the Company;
and
(ix)
to clear and terminate the Custodial Account upon the termination of this
Agreement.
In
the
event that the Custodial Account is interest bearing, on each Remittance Date,
the Company shall withdraw all funds from the Custodial Account except for
those
amounts which, pursuant to Section 5.01, the Company is not obligated to remit
on such Remittance Date. The Company may use such withdrawn funds only for
the
purposes described in this Section 4.05.
Section
4.06 Establishment
of and Deposits to Escrow Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, "Xxxxx Fargo
Bank, N.A., in trust for the Purchaser and/or subsequent purchasers of
Residential Mortgage Loans, and various Mortgagors - T & I." The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.07.
The
Company shall deposit in the Escrow Account or Accounts within two (2) Business
Days of Company’s receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement;
(ii)
all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property;
(iii)
all
payments on account of Buydown Funds; and
(iv)
all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
48
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.07.
The
Company shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company only:
(i)
to effect timely payments of ground rents, taxes, assessments, water rates,
mortgage insurance premiums, condominium charges, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage;
(ii)
to reimburse the Company for any Servicing Advances made by the Company pursuant
to Section 4.08 with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii)
to
refund to any Mortgagor any funds found to be in excess of the amounts required
under the terms of the related Mortgage Loan;
(iv)
for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v)
for application to the restoration or repair of the Mortgaged Property in
accordance with the procedures outlined in Section 4.14;
(vi)
to
pay to the Company, or any Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii)
to
remove funds inadvertently placed in the Escrow Account by the Company;
(viii)
to
transfer payment on account of Buydown Funds and/or Subsidy Funds to the
Custodial Account, as applicable; and
(ix)
to clear and terminate the Escrow Account on the termination of this Agreement.
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy
premiums and fire and hazard insurance coverage and shall obtain, from time
to
time, all bills for the payment of such charges (including renewal premiums)
and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Company in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Company assumes full responsibility for the timely payment of all such bills
and
shall effect timely payment of all such charges irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect
such
payments.
49
Section
4.09 Protection
of Accounts.
The
Company may transfer the Custodial Account, Subsidy Account or the Escrow
Account to a different Qualified Depository from time to time, provided that
the
Company shall give notice to the Purchaser of such transfer.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) 100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan or (b) an amount such that
the proceeds of such insurance shall be sufficient to prevent the application
to
the Mortgagor or the loss payee of any coinsurance clause under the policy.
In
the event a hazard insurance policy shall be in danger of being terminated,
or
in the event the insurer shall cease to be acceptable to Xxxxxx Mae or Xxxxxxx
Mac, the Company shall notify the Purchaser and the related Mortgagor, and
shall
use its best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.11 hereof.
If
the
related Mortgaged Property is located in an area identified 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 Insurance Administration
is in effect with a generally acceptable insurance carrier acceptable to Xxxxxx
Mae or Xxxxxxx Mac in an amount representing coverage equal to the lesser of
(i)
the minimum amount required, under the terms of coverage, to compensate for
any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Company determines in accordance with the
applicable law and pursuant to the Xxxxxx Mae or Xxxxxxx Mac guide, that the
Mortgaged Property is located in a special flood hazard area and is not covered
by flood insurance or is covered
in an amount less than the amount required by the Flood Disaster Protection
Act
of 1973, as amended, the Company shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if the Mortgagor fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Company shall force place the required flood
insurance on the Mortgagor's behalf.
50
If
a
Mortgage is secured by a unit in a condominium project, the Company shall verify
that the coverage required of the owner's association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with then
current Xxxxxx Mae requirements, and secure from the owner's association its
agreement to notify the Company promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least thirty (30) days prior written notice of any
cancellation, reduction in amount or material change in coverage.
The
Company shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
not accept any such insurance policies from insurance companies unless such
companies are acceptable to Xxxxxx Xxx and Xxxxxxx Mac and are licensed to
do
business in the jurisdiction in which the Mortgaged Property is located. The
Company shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address.
Pursuant
to Section 4.04, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company's normal servicing procedures as specified in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
Section
4.11 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10,
it
shall conclusively be deemed to have satisfied its obligations as set forth
in
Section 4.10. The Company shall prepare and make any claims on the blanket
policy as deemed necessary by the Company in accordance with Accepted Servicing
Practices. Any amounts collected by the Company under any such policy relating
to a Mortgage Loan shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 4.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained
on
the related Mortgaged Property a policy complying with Section 4.10, and there
shall have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount
not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from the Company's funds, without reimbursement
therefor. Upon request of the Purchaser, the Company shall cause to be delivered
to such Purchaser a certificate of insurance and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without thirty (30) days' prior written notice to such Purchaser.
51
Section
4.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other Persons acting in any capacity requiring
such Persons to handle funds, money, documents or papers relating to the
Mortgage Loans ("Company Employees"). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker's Blanket
Bond and shall protect and insure the Company against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Company Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy
also shall protect and insure the Company against losses in connection with
the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 4.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Company from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such Fidelity Bond and Errors
and
Omissions Insurance Policy shall be acceptable to Xxxxxx Mae or Xxxxxxx Mac.
Upon the request of any Purchaser, the Company shall cause to be delivered
to
such Purchaser a certificate of insurance for such Fidelity Bond and Errors
and
Omissions Insurance Policy and a statement from the surety and the insurer
that
such Fidelity Bond and Errors and Omissions Insurance Policy shall in no event
be terminated or materially modified without thirty (30) days' prior written
notice to the Purchaser.
Section
4.13 Inspections.
If
any
Mortgage Loan is more than sixty (60) days delinquent and the Company has not
entered into any temporary alternative repayment arrangements with the related
Mortgagor, the Company or its agent shall inspect the Mortgaged Property in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer, to assure that the value of the Mortgaged
Property is being preserved. The Company shall keep a record of each such
inspection and, upon request, shall provide the Purchaser with an electronic
report of each such inspection.
52
Section
4.14 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. For claims greater than $15,000,
at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation Proceeds:
(i)
the Company shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect thereto;
(ii)
the Company shall take all steps necessary to preserve the priority of the
lien
of the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics' and materialmen's liens;
(iii)
the Company shall verify that the Mortgage Loan is not in default; and
(iv)
pending repairs or restoration, the Company shall place the Insurance Proceeds
or Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Company is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
4.15 Maintenance
of PMI Policy; Claims.
Except
as
indicated on the related Data File, for each Mortgage Loan with an LTV in excess
of 80% at the time of origination, the Company shall, without any cost to the
Purchaser maintain or cause the Mortgagor to maintain in full force and effect
a
PMI Policy insuring the portion of the unpaid principal balance of the Mortgage
Loan as to payment defaults. If the Mortgage Loan is insured by a PMI Policy
for
which the Mortgagor pays all premiums, the coverage will remain in place until
(i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise terminated
pursuant to the Homeowners Protection Act of 1998, 12 USC §4901, et seq. In the
event that such PMI Policy shall be terminated other than as required by law,
the Company shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such terminated
PMI Policy. If the insurer shall cease to be a Qualified Insurer, the Company
shall determine whether recoveries under the PMI Policy are jeopardized for
reasons related to the financial condition of such insurer, it being understood
that the Company shall in no event have any responsibility or liability for
any
failure to recover under the PMI Policy for such reason. If the Company
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Company shall not take any action which would
result in noncoverage under any applicable PMI Policy of any loss which, but
for
the actions of the Company would have been covered thereunder. In connection
with any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the
Company shall promptly notify the insurer under the related PMI Policy, if
any,
of such assumption or substitution of liability in accordance with the terms
of
such PMI Policy and shall take all actions which may be required by such insurer
as a condition to the continuation of coverage under such PMI Policy. If such
PMI Policy is terminated as a result of such assumption or substitution of
liability, the Company shall obtain a replacement PMI Policy as provided above.
53
In
connection with its activities as servicer, the Company agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted Mortgage Loan. Pursuant
to
Section 4.04, any amounts collected by the Company under any PMI Policy shall
be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Section
4.16 Title,
Management and Disposition of REO Property.
Subject
to Section 4.02, in the event that title to any Mortgaged Property is acquired
in foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be taken in the name of the Purchaser or the Purchaser's designee,
or
in the event the Purchaser is not authorized or permitted to hold title to
real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an Opinion of Counsel obtained by the
Company from any attorney duly licensed to practice law in the state where
the
REO Property is located. The Person or Persons holding such title other than
the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the Purchaser.
The
Company shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event prior to the close of
the
third calendar year beginning after the year in which title has been taken
to
such REO Property, unless (i) a REMIC election has not been made with respect
to
the arrangement under which the Mortgage Loans and the REO Property are held,
and (ii) the Company determines that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than three years
is
permitted under the foregoing sentence, (i) the Company shall report monthly
to
the Purchaser as to the progress being made in selling such REO Property and
(ii) if a purchase money mortgage is taken
in
connection with such sale, such purchase money mortgage (1) shall name the
Company as mortgagee, and (2) shall not be held pursuant to this Agreement.
54
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
The
disposition of REO Property shall be carried out by the Company at such price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser; provided, however, that the Company, prior to any
such disposition, shall notify the Purchaser in writing of such price, terms
and
conditions and shall proceed with such disposition only if the Company is not
otherwise directed by the Purchaser, in a writing delivered to the Company,
not
later than the second Business Day following the Company’s delivery of such
notice to the Purchaser. The proceeds of sale of the REO Property shall be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Company shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw from the Custodial Account funds necessary for the proper
operation management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Section 4.10 and the fees of any
managing agent of the Company, or the Company itself. The Company shall make
monthly distributions on each Remittance Date to the Purchaser of the net cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in this Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section
4.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.02, the Company shall furnish
to the Purchaser on or before the Remittance Date each month a statement with
respect to any REO Property covering the operation of such REO Property for
the
previous month and the Company's efforts in connection with the sale of such
REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information available to the Company as the Purchaser shall reasonably request.
55
Section
4.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property.
Section
4.19 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code. The Company shall file information reports with respect to the receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.20 Application
of Buydown Funds.
With
respect to each Buydown Mortgage Loan, the Company shall have deposited into
the
Escrow Account, no later than the last day of the month, Buydown Funds in an
amount equal to the aggregate undiscounted amount of payments that, when added
to the amount the Mortgagor on such Mortgage Loan is obligated to pay on all
Due
Dates in accordance with the terms of the Buydown Agreement, is equal to the
full scheduled Monthly Payments which are required to be paid by the Mortgagor
under the terms of the related Mortgage Note (without regard to the related
Buydown Agreement as if the Mortgage Loan were not subject to the terms of
the
Buydown Agreement). With respect to each Buydown Mortgage Loan, the Company
will
distribute to the Purchaser on each Remittance Date an amount of Buydown Funds
equal to the amount that, when added to the amount required to be paid on such
date by the related Mortgagor, pursuant to and in accordance with the related
Buydown Agreement, equals the full Monthly Payment that would otherwise be
required to be paid on such Mortgage Loan by the related Mortgagor under the
terms of the related Mortgage Note (as if the Mortgage Loan were not a Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown Period and the Mortgaged Property securing such Buydown Mortgage Loan
is
sold in the liquidation thereof (either by the Company or the insurer under
any
related Primary Insurance Policy) the Company shall, on the Remittance Date
following the date upon which Liquidation Proceeds or REO Disposition proceeds
are received with respect to any such Buydown Mortgage Loan, distribute to
the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Escrow Account. Pursuant to the terms of each Buydown Agreement, any amounts
distributed to the Purchaser in accordance with the preceding sentence will
be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such Mortgage
Loan in its entirety during the related Buydown Period, the Company shall be
required to withdraw from the Escrow Account any Buydown Funds remaining in
the
Escrow Account with respect to such Buydown Mortgage Loan in accordance with
the
related Buydown Agreement. If a principal prepayment by a Mortgagor on a Buydown
Mortgage Loan during the related Buydown Period, together with any Buydown
Funds
then remaining in the Escrow Account related to such Buydown Mortgage Loan,
would result in a principal prepayment of the entire unpaid principal balance
of
the Buydown
Mortgage Loan, the Company shall distribute to the Purchaser on the Remittance
Date occurring in the month immediately succeeding the month in which such
Principal Prepayment is received, all Buydown Funds related to such Mortgage
Loan so remaining in the Escrow Account, together with any amounts required
to
be deposited into the Custodial Account.
56
Section
4.21 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Company shall adjust the
Mortgage Interest Rate on the related Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Company shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. Upon the discovery by the Company or
the
receipt of notice from the Purchaser that the Company has failed to adjust
a
Mortgage Interest Rate in accordance with the terms of the related Mortgage
Note, the Company shall immediately deposit in the Custodial Account from its
own funds the amount of any interest loss or deferral caused the Purchaser
thereby.
Section
4.22 Confidentiality/Protection
of Customer Information.
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary for
the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies. Each party agrees that it shall comply with all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity
of
Customer Information, including maintaining security measures designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information, 66 Fed. Reg. 8616 (the “Interagency
Guidelines”). For purposes of this Section, the term “Customer Information”
shall have the meaning assigned to it in the Interagency Guidelines.
Section
4.23 Fair
Credit Reporting Act
The
Company, in its capacity as servicer for each Mortgage Loan, agrees to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
Section
4.24 Establishment
of and Deposits to Subsidy Account.
The
Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “Xxxxx Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or
subsequent purchasers of Residential Mortgage Loans, and various Mortgagors.”
The Subsidy Account shall be an eligible deposit account established with an
eligible institution.
57
The
Company shall, from time to time, withdraw funds from the Subsidy Account for
the following purposes:
(i)
to
deposit in the Custodial Account in the amounts and in the manner provided
for
in Section 4.04(xi);
(ii)
to
transfer funds to another eligible institution in accordance with Section 4.09
hereof;
(iii)
to
withdraw funds deposited in error; and
(iv)
to
clear and terminate the Subsidy Account upon the termination of this Agreement.
Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Subsidy Account to the extent that the Company can
separately identify any Subsidy Funds deposited therein.
58
Section
4.25 Letter
of Credit Compliance.
Notwithstanding
any other provision of this Agreement, the Company shall comply with all the
requirements of any Letter of Credit so as to assure the full benefit of such
Letter of Credit to the Purchaser.
Section
4.26 Letter
of Credit Draws.
The
Company shall take all steps necessary to make draws under any Letter of Credit
in accordance with the provisions thereof and shall draw on each Letter of
Credit all amounts payable thereunder within the time frame required by the
Letter of Credit or such shorter time within which the Company can effect such
draw (not to exceed thirty (30) calendar days) of (i) the date the related
Pledged Asset Mortgage Loan becomes ninety (90) days or more delinquent and
(ii)
the receipt of notice of non-renewal from the Pledge Holder at any time prior
to
the date that all amounts owed under the related Pledged Asset Mortgage Loan
are
less than or equal to 80% of the Appraised Value of the related Mortgaged
Property. The Company shall notify the Purchaser promptly in writing upon
receipt of notice from the Pledge Holder of non-renewal of any Letter of Credit.
Upon receipt of any amounts as a result of a draw on a Letter of Credit because
of the non-renewal of such Letter of Credit or as a result of the Pledged Asset
Mortgage Loan continuing in default for ninety (90) or more days, the Company
shall deposit such amounts in the Custodial Account and such amount shall be
treated as a payment of principal.
Section
4.27 Assignment
of the Letter of Credit.
Notwithstanding
anything to the contrary in this Agreement (including, without limitation,
the
termination or transfer of the servicing rights and/or obligations of the
Company pursuant to Articles X and XI hereof), the Company, as beneficiary
under
any Non-Assigned Letters of Credit, shall transfer and assign, at no cost to
the
Purchaser, each Non-Assigned Letter of Credit to the Purchaser in accordance
with the provisions thereof within ten (10) days of such termination or
transfer. In addition, the Company shall forward within one (1) Business Day
of
receipt any notice received of non-renewal of any Letter of Credit. Any funds
received by the Company from draws on the Non-Assigned Letters of Credit after
the Company is no longer the servicer hereunder shall be remitted by the Company
to the successor servicer for deposit into the Custodial Account.
Within
thirty (30) days of the related Closing Date, the Company, as beneficiary under
any Letter of Credit, shall assign each Letter of Credit in blank and then
deliver each such Letter of Credit to the Custodian.
Section
4.28 Pledge
Holder Defaults.
Upon
a
default under the Letter of Credit by the Pledge Holder, the Company shall
take
possession of the assets securing the Letter of Credit and shall deposit such
assets or the proceeds thereof in the Custodial Account and apply them as a
prepayment of the related Pledged Asset Mortgage Loan. If such default described
in the prior sentence occurs at any time that
the
Company is no longer the servicer of the related Pledged Asset Mortgage Loan,
the Company shall, upon knowledge of such default or notice from the successor
servicer of such default with respect to any Non-Assigned Letter of Credit
forward such proceeds to the successor servicer for deposit into the Custodial
Account.
59
Section
4.29 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (a) of this Section 4.29. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph (b)
of
this Section 4.29.
(a)
It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subservicer. The Company shall cause
any
Subservicer used by the Company (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of this Section 4.29
and with Sections 6.04, 6.06, 9.01(d)(iii), 9.01(d)(v), 9.01(d)(vii),
9.01(d)(viii) and 9.01(e) of this Agreement to the same extent as if such
Subservicer were the Company, and to provide the information required with
respect to such Subservicer under Section 9.01(d)(iv) of this Agreement. The
Company shall be responsible for obtaining from each Subservicer and delivering
to the Purchaser and any Depositor any servicer compliance statement required
to
be delivered by such Subservicer under Section 6.04 and any assessment of
compliance and attestation required to be delivered by such Subservicer under
Section 6.06 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 6.06
as
and when required to be delivered.
(b)
It
shall not be necessary for the Company to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subcontractor. The Company shall
promptly upon request provide to the Purchaser and any Depositor (or any
designee of the Depositor, such as an administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of the
role
and function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(e) of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation and
other certifications required to be delivered by such Subcontractor under
Section 6.06, in each case as and when required to be delivered.
60
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.01 Remittances.
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.03, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
minus (d) any amounts attributable to Monthly Payments collected but due on
a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held in
the
Custodial Account, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Company shall
pay to the Purchaser interest on any such late payment at an annual rate equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Company
on
the date such late payment is made and shall cover the period commencing with
the day following such second Business Day and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Company of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Company.
Section
5.02 Statements
to Purchaser.
Not
later
than the Remittance Date, the Company shall furnish to the Purchaser in either
written or electronic format, a delinquency report and a monthly remittance
advice, each in a form mutually acceptable to the Company and the Purchaser,
as
to the remittance period ending on the last day of the preceding month.
61
Except
with respect to Mortgage Loans which are master serviced by the Master Servicer,
not later than the tenth (10th)
calendar day of each month, the Company shall furnish to the Purchaser in either
written or electronic format, a delinquency report and a monthly remittance
advice, each in a form mutually acceptable to the Company and the Purchaser,
as
to the remittance period ending on the last day of the preceding month
Section
5.03 Monthly
Advances by Company.
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the immediately preceding Determination Date or which were deferred
pursuant to Section 4.01. Any amounts held for future distribution and so used
shall be replaced by the Company by deposit in the Custodial Account on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Purchaser required to be
made
on such Remittance Date. The Company's obligation to make such Monthly Advances
as to any Mortgage Loan will continue through the last Monthly Payment due
prior
to the payment in full of the Mortgage Loan, or through the last Remittance
Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan; provided,
however, that such obligation shall cease if the Company determines, in its
sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, REO Disposition
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect
to a particular Mortgage Loan. In the event that the Company determines that
any
such advances are non-recoverable, the Company shall provide the Purchaser
with
a certificate signed by two officers of the Company evidencing such
determination. The Company shall not have an obligation to make such Monthly
Advances as to any Mortgage Loan with respect to shortfalls relating to the
Servicemembers Civil Relief Act or similar state and local laws.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Transfers
of Mortgaged Property.
The
Company shall use its best efforts to enforce any "due-on-sale" provision
contained in any Mortgage or Mortgage Note and to deny assumption by the Person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the "due-on-sale" clause applicable thereto,
provided, however, that the Company shall not exercise such rights if prohibited
by law from doing
so
or if the exercise of such rights would impair or threaten to impair any
recovery under the related PMI Policy, if any.
62
If
the
Company reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, the Company shall enter into (i) an assumption and
modification agreement with the Person to whom such property has been conveyed,
pursuant to which such Person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Company
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser’s consent.
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the credit worthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee which
are used with respect to underwriting mortgage loans of the same type as the
Mortgage Loan. If the credit worthiness of the proposed transferee does not
meet
such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
Section
6.02 Satisfaction
of Mortgages and Release of Retained Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Company shall notify the Purchaser in the monthly remittance
advice as provided in Section 5.02, and may request the release of any Mortgage
Loan Documents.
If
the
Company satisfies or releases the lien of the Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage (other
than
as a result of a modification of the Mortgage pursuant to the terms of this
Agreement or liquidation of the Mortgaged Property pursuant to the terms of
this
Agreement) or should the Company otherwise prejudice any rights the Purchaser
may have under the mortgage instruments, upon written demand of the Purchaser,
the Company shall repurchase the related Mortgage Loan at the Repurchase Price
by deposit thereof in the Custodial Account within two (2) Business Days of
receipt of such demand by the Purchaser. The Company shall maintain the Fidelity
Bond and Errors and Omissions Insurance Policy as provided for in Section 4.12
insuring the Company against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth herein.
63
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account the amount of its Servicing Fee. The
Servicing Fee shall be payable monthly and shall be computed on the basis of
the
unpaid principal balance and for the period respecting which any related
interest payment on a Mortgage Loan is received. The obligation of the Purchaser
to pay the Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by Section 4.05) of such Monthly Payments.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.01, and late payment charges shall be retained by the Company to
the
extent not required to be deposited in the Custodial Account. The Company shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof except
as specifically provided for herein.
Section
6.04 Annual
Statements as to Compliance.
On
or
before March 1 of each calendar year, the Company shall deliver to the Purchaser
and any Depositor a statement of compliance addressed to the Purchaser and
such
Depositor and signed by an authorized officer of the Company, to the effect
that
(a) a review of the Company’s activities during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under
this
Agreement and any applicable Reconstitution Agreement during such period has
been made under such officer’s supervision, and (b) to the best of such
officers’ knowledge, based on such review, the Company has fulfilled all of its
obligations under this Agreement and any applicable Reconstitution Agreement
in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section
6.05 [Reserved]
Section
6.06 Report
on Assessment of Compliance and Attestation.
On
or
before March 1 of each calendar year, the Company shall:
(i)
deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Company’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Company and shall address each of the “Applicable Servicing Criteria” specified
on Exhibit F hereto;
64
(ii)
deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Company and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act;
(iii)
cause
each Subservicer and each Subcontractor, determined by the Company pursuant
to
Section 4.29(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and such
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (i) and (ii) of this Section 6.06; and
(iv)
if
requested by the Purchaser and any Depositor not later than February 1 of the
calendar year in which such certification is to be delivered, deliver to the
Purchaser, any Depositor and any other Person that will be responsible for
signing the certification (a “Sarbanes Certification”) required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of
the
Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect
to
a Securitization Transaction a certification in the form attached hereto as
Exhibit G.
The
Company acknowledges that the parties identified in clause (iv) above may rely
on the certification provided by the Company pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (iv) above unless a Depositor is required under the Exchange Act to
file
an annual report on Form 10-K with respect to an issuing entity whose asset
pool
includes Mortgage Loans.
Each
assessment of compliance provided by a Subservicer pursuant to Section 6.06(i)
shall address each of the Servicing Criteria specified on Exhibit F hereto
or,
in the case of a Subservicer subsequently appointed as such, on or prior to
the
date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 6.06(iii) need not address any elements of
the
Servicing Criteria other than those specified by the Company pursuant to Section
4.29.
Section
6.07 Remedies.
(i)
Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article IX, Section 4.29,
Section 6.04 or Section 6.06, or any breach by the Company of a representation
or warranty set forth in Section 9.01(d)(vi)(A), or in a writing furnished
pursuant to Section 9.01(d)(vi)(B) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such breach
is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(d)(vi)(B) to the extent made as of a date subsequent to such closing date,
shall, except as provided in sub-clause (ii) of this Section, immediately and
automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Company under this Agreement and any applicable Reconstitution Agreement,
and shall entitle the Purchaser or any Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Company as servicer
under this Agreement and/or any applicable Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Company;
provided,
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
65
(ii)
Any
failure by the Company, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 6.04 or Section 6.06, including (except as provided below) any
failure by the Company to identify any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Company
under
this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Company;
provided that to the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company as servicer,
such provision shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this Section 6.07(ii) if a failure of
the
Company to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or function of such Subcontractor with respect to mortgage loans other
than
the Mortgage Loans.
(iii)
The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser), any Master Servicer and any Depositor, as applicable, for all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as servicer and the transfer of servicing of the Mortgage Loans to
a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance or
injunctive relief.
Section
6.08 Right
to Examine Company Records.
The
Purchaser, or its designee, shall have the right to examine and audit any and
all of the books, records, or other information of the Company, whether held
by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as
may be reasonable under applicable circumstances,
upon reasonable advance notice. The Purchaser shall pay its own expenses
associated with such examination.
66
Section
6.09 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Company shall not take any action,
cause the REMIC to take any action or fail to take any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of the REMIC as a REMIC or (ii) result in the imposition of a tax
upon the REMIC (including but not limited to the tax on “prohibited
transactions” as defined in Section 860F(a)(2) of the Code and the tax on
“contributions” to a REMIC set forth in Section 860G(d) of the Code) unless the
Company has received an Opinion of Counsel (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such REMIC status or result in the imposition of any such tax.
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.01 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special, or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance with
all reasonable instructions and directions which the Purchaser may give.
The
Company shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this Agreement.
Section
7.02 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser a Consolidated Statement of Operations of the Company
for the most recently completed two (2) fiscal years for which such a statement
is available, as well as a Consolidated Statement of Condition at the end of
the
last two (2) fiscal years covered by such Consolidated Statement of Operations.
The Company, upon request, also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on behalf
of the Company (and are available upon request to members or stockholders of
the
Company or to the public at large).
67
The
Company also shall make available to Purchaser or prospective purchasers a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective purchaser to inspect
the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.01 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and hold it harmless against any and
all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Company
to perform its duties and service the Mortgage Loans in strict compliance with
the terms of this Agreement. The Company immediately shall notify the Purchaser
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Company shall follow any written instructions received from the
Purchaser in connection with such claim. The Purchaser promptly shall reimburse
the Company for all amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way related to the Company's indemnification
pursuant to Section 3.03, or the failure of the Company to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises, and
shall obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, however, that the successor
or
surviving Person shall be an institution which is a Xxxxxx Xxx/Xxxxxxx
Mac-approved seller/servicer in good standing. Furthermore, in the event the
Company transfers or otherwise disposes of all or substantially all of its
assets to an affiliate of the Company, such affiliate
shall satisfy the condition above, and shall also be fully liable to the
Purchaser for all of the Company's obligations and liabilities hereunder.
68
Section
8.03 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company or any such Person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement
or
any other liability which would otherwise be imposed under this Agreement.
The
Company and any director, officer, employee or agent of the Company may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans
in
accordance with this Agreement and which in its opinion may involve it in any
expense or liability, provided, however, that the Company may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the Company shall be entitled to reimbursement from
the
Purchaser of the reasonable legal expenses and costs of such action.
Section
8.04 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing rights hereunder
or
delegate its rights or duties hereunder (other than pursuant to Section 4.01)
or
any portion hereof or sell or otherwise dispose of all of its property or assets
without the prior written consent of the Purchaser, which consent shall not
be
unreasonably withheld.
The
Company shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided
in
Section 12.01.
Without
in any way limiting the generality of this Section 8.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its rights or duties hereunder (other than pursuant to
Section 4.01) or any portion hereof or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written
consent of the Purchaser, then the Purchaser shall have the right to terminate
this Agreement upon notice given as set forth in Section 10.01, without any
payment of any penalty or damages and without any liability whatsoever to the
Purchaser or any third party.
69
ARTICLE
IX
AGENCY
TRANSFERS, SECURITIZATION TRANSACTIONS AND WHOLE LOAN TRANSFERS
Section
9.01 Agency
Transfers, Securitization Transactions and Whole Loan Transfers
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Transfers or Securitization Transactions, retaining the Company as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage
Loans
transferred may cease to be covered by this Agreement; provided, however, that,
in the event that any Mortgage Loan transferred pursuant to this Section 9.01
is
rejected by the transferee, the Company shall continue to service such rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole Loan
Transfer, Agency Transfer or Securitization Transaction in accordance with
this
Section 9.01. In connection therewith:
(a)
The
Company shall make all representations and warranties made herein with respect
to the Mortgage Loans as of the Closing Date and all representations and
warranties made herein with respect to the Company itself as of the closing
date
of each Whole Loan Transfer, Agency Transfer or Securitization Transaction;
(b)
The
Company shall negotiate in good faith and execute any (i) seller/servicer
agreements required to effectuate the foregoing provided such agreements create
no greater obligation or cost on the part of the Company than otherwise set
forth in this Agreement or (ii) an assignment, assumption and recognition
agreement, in the form attached hereto as Exhibit H, or a pooling and servicing
agreement in form and substance reasonably acceptable to the Purchaser and
the
Company, which shall not create any greater obligation upon the Company.
(c)
The
Company shall execute any seller/servicer agreements required within a
reasonable period of time after receipt of such seller/servicer agreements
which
time shall be sufficient for the Company and Company's counsel to review such
seller/servicer agreements. Under this Agreement, the Company shall retain
a
Servicing Fee for each Mortgage Loan at the Servicing Fee Rate; and
(d)
In connection with any Securitization Transaction, the Company shall (1) within
five (5) Business Days following request by the Purchaser or any Depositor,
provide
to the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (i), (ii), (iii) and (vii)
of
this subsection (d), and (2) as promptly as practicable following notice to
or
discovery by the Company, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (iv) of this subsection
(d).
70
(i)
If so
requested by the Purchaser or any Depositor, the Company shall provide such
information regarding (1) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(2) each Third-Party Originator, and (3) as applicable, each Subservicer, as
is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A)
the originator’s form of organization;
(B)
a description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage loans, which
description shall include a discussion of the originator’s experience in
originating mortgage loans of a similar type as the Mortgage Loans; information
regarding the size and composition of the originator’s origination portfolio;
and information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the Mortgage
Loans, including the originators’ credit-granting or underwriting criteria for
mortgage loans of similar type(s) as the Mortgage Loans and such other
information as the Purchaser or any Depositor may reasonably request for the
purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C)
a description of any material legal or governmental proceedings pending (or
known to be contemplated) against the Company, each Third-Party Originator
and
each Subservicer; and
(D)
a
description of any affiliation or relationship (of a type described in Item
1119
of Regulation AB) between the Company, each Third-Party Originator, each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Company by the Purchaser or any Depositor
in
writing in advance of a Securitization Transaction:
(1)
the
sponsor;
(2)
the
depositor;
71
(3)
the
issuing entity;
(4)
any
servicer;
(5)
any
trustee;
(6)
any
originator;
(7)
any
significant obligor;
(8)
any
enhancement or support provider; and
(9)
any
other material transaction party.
(ii)
If so requested by the Purchaser or any Depositor, the Company shall provide
(or, as applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (1) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (2) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Company (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the
Company (or Third-Party Originator) Static Pool Information with respect to
more
than one mortgage loan type, the Purchaser or any Depositor shall be entitled
to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Company, and need not be customized for the
Purchaser or any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document format (pdf)
file, or other such electronic format reasonably required by the Purchaser
or
the Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Company shall provide corrected Static Pool Information to
the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the Company.
72
If
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Company’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(iii) If
so requested by the Purchaser or any Depositor, the Company shall provide such
information regarding the Company, as servicer of the Mortgage Loans, and each
Subservicer (each of the Company and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108 of Regulation AB. Such information shall include, at a
minimum:
(A)
the
Servicer’s form of organization;
(B)
a description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1)
whether any prior securitizations of mortgage loans of a type similar to the
Mortgage Loans involving the Servicer have defaulted or experienced an early
amortization or other
performance triggering event because of servicing during the three-year period
immediately preceding the related Securitization Transaction;
73
(2)
the extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
Servicing Criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4)
whether the Servicer has been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; and
(5)
such other information as the Purchaser or any Depositor may reasonably request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
(C)
a description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Company
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E)
information regarding advances made by the Servicer on the Mortgage Loans and
the Servicer’s overall servicing portfolio of residential mortgage loans for the
three-year period immediately preceding the related Securitization Transaction,
which may be limited to a statement by an authorized officer of the Servicer
to
the effect that the Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period, or, if such
statement would not be accurate, information regarding the percentage and type
of advances not made as required, and the reasons for such failure to
advance;
74
(F)
a description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G)
a description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H)
information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(iv)
If
so requested by the Purchaser or any Depositor for the purpose of satisfying
the
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Company shall (or shall cause each Subservicer
and
Third-Party Originator to) (1) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings involving the
Company, any Subservicer or any Third-Party Originator and (B) any affiliations
or relationships that develop following the closing date of a Securitization
Transaction between the Company, any Subservicer or any Third-Party Originator
and any of the parties specified in Section 9.01(d)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (2) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(v) As
a condition to the succession to the Company or any Subservicer as servicer
or
Subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser and any Depositor, at least fifteen
(15) calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
75
(vi)
(A)
The Company shall be deemed to represent to the Purchaser and to any Depositor,
as of the date on which information is first provided to the Purchaser or any
Depositor under this Section 9.01(d) that, except as disclosed
in writing to the Purchaser or such Depositor prior to such date: (1) the
Company is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Company; (2) the Company
has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (3) no material noncompliance with the
applicable Servicing Criteria with respect to other securitizations of
residential mortgage loans involving the Company as servicer has been disclosed
or reported by the Company; (4) no material changes to the Company’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreement for mortgage loans of a type similar
to the Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there are no aspects
of
the Company’s financial condition that could have a material adverse effect on
the performance by the Company of its servicing obligations under this Agreement
or any Reconstitution Agreement; (6) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Company, any
Subservicer or any Third-Party Originator; and (7) there are no affiliations,
relationships or transactions relating to the Company, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(B)
If so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
this
Section 9.01(d), the Company shall, within five (5) Business Days following
such
request, confirm in writing the accuracy of the representations and warranties
set forth in sub clause (A) above or, if any such representation and warranty
is
not accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
(vii)
In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if so requested by
the
Purchaser or any Depositor, the Company shall provide such information regarding
the performance or servicing of the Mortgage Loans as is reasonably required
to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten (10) Business Days
following such request.
76
(e)
The Company shall indemnify the Purchaser, each affiliate of the Purchaser,
and
each of the following parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of the
Depositor (each, an “Indemnified Party”), and shall hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i)
(A) any untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other material
provided in written or electronic form under Sections 4.29, 6.04, 6.06, 9.01(d)
and (e) by or on behalf of the Company, or provided under Sections 4.29, 6.04,
6.06, 9.01(d) and (e) by or on behalf of any Subservicer, Subcontractor or
Third-Party Originator (collectively, the “Company Information”), or (B) the
omission or alleged omission to state in the Company Information a material
fact
required to be stated in the Company Information or necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Company Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or separately
from
such other information;
(ii)
any breach by the Company of its obligations under this Section 9.01(e),
including particularly any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information, report,
certification, accountants’ letter or other material when and as required under
Sections 4.29, 6.04, 6.06 and 9.01(d), including any failure by the Company
to
identify any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB; or
(iii)
any
breach by the Company of a representation or warranty set forth in Section
9.01(d)(vi)(A) or in a writing furnished pursuant to Section 9.01(d)(vi)(B)
and
made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Company of a representation or warranty
in a writing furnished pursuant to Section 9.01(d)(vi)(B) to the extent made
as
of a date subsequent to such closing date.
77
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.
In
the
case of any failure of performance described in sub-clause (ii) of this Section
9.01(e), the Company shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(f)
The Purchaser and a credit-worthy parent of the Purchaser, reasonably acceptable
to the Company shall indemnify the Company, each affiliate of the Company,
each
Person who controls any of such parties or the Company (within the meaning
of
Section 15 of the Securities Act and Section 20 of the Exchange Act) and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Company, and shall hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i)
any untrue statement of a material fact contained or alleged to be contained
in
any offering materials related to a Securitization Transaction, including
without limitation the registration statement, prospectus, prospectus
supplement, any private placement memorandum, any free writing prospectuses,
any
ABS informational and computational material, and any amendments or supplements
to the foregoing (collectively, the “Securitization Materials”) or
(ii)
the
omission or alleged omission to state in the Securitization Materials a material
fact required to be stated in the Securitization Materials or necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, but
only
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission is other than a statement or omission arising out of,
resulting from, or based upon the Company Information.
78
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Purchaser 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 Purchaser on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(g)
The Company shall at any time as required by any Rating Agency, and in
accordance with Section 2.02, provide such additional documents from the related
Retained Mortgage File to the Custodian.
(h)
In connection with an Agency Transfer, the Purchaser shall provide the
Company with a list of the Mortgage Loans, including the preliminary scheduled
principal balance of each Mortgage Loan, to be included in such Agency Transfer.
Upon receipt of such Mortgage Loan list, the Company shall provide the Purchaser
with the seller/servicer number to be used by the Company to deliver such
Mortgage Loans to the related Agency. The Purchaser shall be responsible for
providing accurate information, as specified above, to the related Agency.
If
the Purchaser fails to provide accurate information, the Purchaser shall
reimburse the Company for any and all penalties assessed by such related Agency
and any reasonable expenses incurred as a result of such inaccurate information.
The
Purchaser and the Company acknowledge and agree that the purpose of Sections
4.29, 6.04, 6.06 and 9.01(d) is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its
terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provisions of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under the provisions itemized in the paragraph
above other than in good faith, or for purposes other than compliance with
the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable
to
that required under the Securities Act). The Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Company, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or
any
Depositor to be necessary in order to effect such compliance.
79
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
In
the
event the Purchaser has elected to have the Company hold record title to the
Mortgages, prior to the Reconstitution Date the Company shall prepare an
Assignment of Mortgage in blank or to the trustee from the Company acceptable
to
the trustee for each Mortgage Loan that is part of the Whole Loan Transfers,
Agency Transfers or Securitization Transactions. The Purchaser shall pay all
preparation and recording costs associated therewith, if such Assignments of
Mortgage have been previously prepared and recorded in the name of the Purchaser
or its designee. The Company shall execute each Assignment of Mortgage, track
such Assignments of Mortgage to ensure they have been recorded and deliver
them
as required by the trustee upon the Company's receipt thereof. Additionally,
the
Company shall prepare and execute, at the direction of the Purchaser, any note
endorsements in connection with any and all seller/servicer agreements.
All
Mortgage Loans (i) not sold or transferred pursuant to Whole Loan Transfers,
Agency Transfers or Securitization Transactions or (ii) that are subject to
a
Securitization Transaction for which the related trust is terminated for any
reason, shall remain subject to this Agreement and shall continue to be serviced
in accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the Company:
(i)
any failure by the Company to remit to the Purchaser any payment required to
be
made under the terms of this Agreement which continues unremedied for a period
of
five
(5) Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company by
the
Purchaser; or
80
(ii)
failure by the Company duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Company set forth in
this Agreement or in the Custodial Agreement which continues unremedied for
a
period of ninety (90) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Company
by the Purchaser or by the Custodian; or
(iii)
failure by the Company to maintain its license to do business in any
jurisdiction where the Mortgaged Property is located if such license is
required; or
(iv)
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, readjustment of debt, including bankruptcy, marshaling of assets
and liabilities or similar proceedings, or for the winding-up or liquidation
of
its affairs, shall have been entered against the Company and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(v)
the Company shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Company or of or
relating to all or substantially all of its property; or
(vi)
the Company shall admit in writing its inability to pay its debts generally
as
they become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three (3) Business Days; or
(vii)
the
Company ceases to meet the qualifications of a Xxxxxx Xxx/Xxxxxxx Mac servicer;
or
(viii) the
Company attempts to assign its right to servicing compensation hereunder or
to
assign this Agreement or the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof in violation of Section 8.04; or
(ix)
an
Event of Default as defined in Section 6.07.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law or equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Company, may terminate all the rights and
obligations of the Company under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof.
81
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 12.01. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the Purchaser
any and all documents and other instruments, place in such successor's
possession all Retained Mortgage Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of such notice
of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
Section
10.02 Waiver
of Defaults.
By
a
written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
ARTICLE
XI
TERMINATION
Section
11.01 Termination.
This
Agreement shall terminate upon: (i) the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
or
the disposition of any REO Property with respect to the last Mortgage Loan
and
the remittance of all funds due hereunder; (ii) mutual consent of the Company
and the Purchaser in writing; or (iii) as provided in Section 10.01 of this
Agreement.
Section
11.02 Termination
Without Cause.
The
Purchaser may terminate, at its sole option, any rights the Company may have
hereunder, without cause as provided in this Section 11.02. Any such notice
of
termination shall be in writing and delivered to the Company by registered
mail
as provided in Section 12.05.
The
Company shall be entitled to receive, as such liquidated damages, upon the
transfer of the servicing rights, an amount equal to: (i) 2.75% of the aggregate
outstanding principal amount of the Mortgage Loans as of the termination date
paid by the Purchaser to the Company with
respect to all of the Mortgage Loans for which a servicing fee rate of .25%
is
paid per annum, (ii) 3.25% of the aggregate outstanding principal amount of
the
Mortgage Loans as of the termination date paid by the Purchaser to the Company
with respect to all of the Mortgage Loans for which a servicing fee rate of
.375% is paid per annum, and (iii) 3.75% of the aggregate outstanding principal
amount of the Mortgage Loans as of the termination date paid by the Purchaser
to
the Company with respect to all of the Mortgage Loans for which a servicing
fee
rate of .44% or greater is paid per annum.
82
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to Company.
Prior
to
termination of the Company's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 10.01, 11.01 (ii) or pursuant to Section 11.02 the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor having the characteristics set forth in Section 8.02 and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Company under this Agreement prior to the termination
of
Company's responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree. In the event that the Company's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the
Purchaser under Sections 3.03 and 8.01, it being understood and agreed that
the
provisions of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable to
the
Company notwithstanding any such sale, assignment, resignation or termination
of
the Company, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 3.01, except for subsection (h) with respect to the sale of the Mortgage
Loans and subsections (i) and (k) thereof, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities, obligations
and liabilities of the Company, with like effect as if originally named as
a
party to this Agreement. Any termination or resignation of the Company or
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01 or 11.02
shall not affect any claims that any
Purchaser may have against the Company arising out of the Company's actions
or
failure to act prior to any such termination or resignation.
83
The
Company shall deliver promptly to the successor servicer the funds in the
Custodial Account, Subsidy Account and Escrow Account and all Retained Mortgage
Files and related documents and statements held by it hereunder and the Company
shall account for all funds and shall execute and deliver such instruments
and
do such other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon
a
successor's acceptance of appointment as such, the Company shall notify by
mail
the Purchaser of such appointment in accordance with the procedures set forth
in
Section 12.05.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by written agreement signed by the
Company and the Purchaser.
Section
12.03 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
Each
of
the Company and the Purchaser hereby knowingly, voluntarily and intentionally
waives any and all rights it may have to a trial by jury in respect or any
litigation based on, or arising out of, under, or in connection with, this
Agreement, or any other documents and instruments executed in connection
herewith, or any course of conduct, course of dealing, statements (whether
oral
or written), or actions of the Company or the Purchaser. This provision is
a
material inducement for the Purchaser to enter into this Agreement.
Section
12.04 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section
12.05 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
(i) if
to the
Company with respect to servicing issues:
84
Xxxxx
Fargo Bank, N.A.
1
Home
Xxxxxx
Xxx
Xxxxxx, XX 00000-0000
Attention:
Xxxx X. Xxxxx, MAC X2302-033
Fax:
515/000-0000
(ii)
if
to the Company with respect to all other issues:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxxx Xxx
Xxxxxxxxx,
XX 00000
Attention:
Structured Finance Manager, MAC X3906-012
Fax:
301/000-0000
In
each
instance, with a copy to:
Xxxxx
Fargo Bank, N.A.
1
Home
Campus
Xxx
Xxxxxx, Xxxx 00000-0000
Attention:
General Counsel MAC X2401-06T
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Company;
(ii)
if
to Purchaser:
Redwood
Trust, Inc.
Xxx
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxx Xxxx
or
such
other address as may hereafter be furnished to the Company in writing by the
Purchaser;
Section
12.06 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement.
Section
12.07 Relationship
of Parties.
85
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Company shall be
rendered as an independent contractor and not as agent for the Purchaser.
Section
12.08 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns. The parties agree that this Agreement and
signature pages thereof may be transmitted between them by facsimile and that
faxed signatures may constitute original signatures and that a faxed signature
page containing the signature (faxed or original) is binding on the parties.
Section
12.09 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Company's expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
Section
12.10 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company to assign,
in
whole or in part, its interest under this Agreement with respect to some or
all
of the Mortgage Loans, and designate any Person to exercise any rights of the
Purchaser hereunder, by executing an Assignment, Assumption and Recognition
Agreement substantially in the form attached as Exhibit H, and the assignee
or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section
12.11 Solicitation
of Mortgagor.
Neither
party shall, after the Closing Date, take any action to solicit the refinancing
of any Mortgage Loan. It is understood and agreed that neither (i) promotions
undertaken by either party or any affiliate of either party which are directed
to the general public at large, including, without limitation, mass mailings
based upon commercially acquired mailing lists, newspaper, radio, television
advertisements nor (ii) serving the refinancing needs of a Mortgagor who,
without solicitation, contacts either party in connection with the refinance
of
such Mortgage or Mortgage Loan, shall constitute solicitation under this
Section.
Section
12.12 Further
Agreements.
86
The
Purchaser and the Company each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Section
12.13 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i)
the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(ii)
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with generally accepted accounting principles;
(iii)
references herein to "Articles", "Sections", "Subsections", "Paragraphs", and
other subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this Agreement;
(iv)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other subdivisions;
(v)
the
words "herein", "hereof", "hereunder" and other words of similar import refer
to
this Agreement as a whole and not to any particular provision; and
(vi)
the
term "include" or "including" shall mean without limitation by reason of
enumeration.
[Intentionally
Blank - Next Page Signature Page]
87
IN
WITNESS WHEREOF, the Company and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
REDWOOD TRUST, INC.
Purchaser
|
XXXXX FARGO BANK, N.A.
Company
|
|
| By: ________________________________ | By: ________________________________ | |
| Name: ______________________________ | Name: ______________________________ | |
| Title: _______________________________ | Title: _______________________________ |
88
| STATE OF | ) | |
| ) | ss: | |
| COUNTY OF ___________ | ) |
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for said
State, personally appeared ______, known to me to be _________ of Xxxxx Fargo
Bank, N.A., the national banking association that executed the within instrument
and also known to me to be the person who executed it on behalf of said bank,
and acknowledged to me that such bank executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
|
Notary Public |
||
| My Commission expires _______________ | ||
89
| STATE OF | ) | |
| ) | ss: | |
| COUNTY OF ___________ | ) |
On
the
_____ day of _______________, 20___ before me, a Notary Public in and for said
State, personally appeared _______________________________, known to me to
be
the _____________________ of _____________________, the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
|
Notary Public |
||
| My Commission expires _______________ | ||
90
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(WFHM
2007-W24)
EXHIBIT
B
CUSTODIAL
AGREEMENT
EXHIBIT
C
CONTENTS
OF EACH RETAINED MORTGAGE FILE, CUSTODIAL
MORTGAGE
FILE AND SERVICING FILE
With
respect to each Mortgage Loan, the Retained Mortgage File, Servicing File and
Custodial Mortgage File shall include each of the following items, which shall
be available for inspection by the Purchaser prior to or after the Closing
Date
and any prospective purchaser after the Closing Date, and which shall be either
retained by the Company in the Retained Mortgage File or Servicing File, or
delivered to the Custodian pursuant to Sections 2.01 and 2.03 of the Seller's
Warranties and Servicing Agreement to which this Exhibit is attached (the
"Agreement"):
With
respect to each Custodial Mortgage File:
1.
The original Mortgage Note bearing all intervening endorsements, endorsed "Pay
to the order of without recourse" and signed in the name of the Company by
an
authorized officer (in the event that the Mortgage Loan was acquired by the
Company in a merger, the signature must be in the following form: "[Company],
successor by merger to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the Company while doing business
under another name, the signature must be in the following form: "[Company],
formerly known as [previous name]").
2.
The originals or certified true copies of any document sent for recordation
of
all assumption, modification, consolidation or extension agreements, with
evidence of recording thereon.
3.
Except
in
the case of MERS Mortgage Loans, the original Assignment of Mortgage for each
Mortgage
Loan, in form and substance acceptable for recording (except for the insertion
of the name of the assignee and recording information). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage investors
in the area where the Mortgaged Property is located or on direction of the
Purchaser. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Company in a merger, the Assignment of
Mortgage must be made by "[Company], successor by merger to [name of
predecessor]." If the Mortgage Loan was acquired or originated by the Company
while doing business under another name, the Assignment of Mortgage must be
by
"[Company], formerly know as [previous name]."
4.
The original of any guarantee executed in connection with the Mortgage Note.
5.
Original or copy of power of attorney, if applicable.
With
respect to each Retained Mortgage File:
6.
Except with respect to a MERS Mortgage Loan, the original Mortgage, with
evidence of recording thereon or a certified true and correct copy of the
Mortgage sent for recordation. If in connection with any Mortgage Loan, the
Company cannot deliver or cause to be delivered the original Mortgage with
evidence of recording thereon on or prior to the Closing Date because of a
delay
caused by the public recording office where such Mortgage has been delivered
for
recordation
or because such Mortgage has been lost or because such public recording office
retains the original recorded Mortgage, the Company shall deliver or cause
to be
delivered to the Custodian, a photocopy of such Mortgage, together with (i)
in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Company stating that such Mortgage has been dispatched to
the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Custodian upon receipt thereof by the Company; or
(ii)
in the case of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after recordation
in a
public recording office, a copy of such Mortgage certified by such public
recording office or by the title insurance company that issued the title policy
to be a true and complete copy of the original recorded Mortgage.
For
each
MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN for
that Mortgage Loan and either language indicating that the Mortgage Loan was
originated in the name of MERS, or if the Mortgage Loan was not originated
in
the name of MERS, the original Mortgage and the assignment to MERS, with
evidence of recording thereon. Further, with respect to MERS Mortgage Loans,
(a)
the Mortgage names MERS as the Mortgagee and (b) the requirements set forth
in
the Electronic Tracking Agreement have been satisfied, with a conformed recorded
copy to follow as soon as the same is received by the Company.
7.
Except with respect to a MERS Mortgage Loan, originals or certified true copies
of documents sent for recordation of all intervening assignments of the Mortgage
with evidence of recording thereon, or if any such intervening assignment has
not been returned from the applicable recording office or has been lost or
if
such public recording office retains the original recorded assignments of
mortgage, the Company shall deliver or cause to be delivered to the Custodian,
a
photocopy of such intervening assignment, together with (i) in the case of
a
delay caused by the public recording office, an Officer's Certificate of the
Company stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public recording
office or by the title insurance company that issued the title policy to be
a
true and complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Custodian upon receipt thereof by
the
Company; or (ii) in the case of an intervening assignment where a public
recording office retains the original recorded intervening assignment or in
the
case where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
8.
The electronic form of PMI Policy as identified by certificate number.
9.
The original mortgagee policy of title insurance or other evidence of title
such
as a copy of the title commitment or copy of the preliminary title commitment.
10.
Any security agreement, chattel mortgage or equivalent executed in connection
with the Mortgage.
11.
For each Cooperative Loan, the original or a copy of the following:
The
Pledge Agreement entered into by the Mortgagor with respect to such Cooperative
Loan;
UCC-3
assignment in blank (or equivalent instrument), sufficient under the laws of
the
jurisdiction where the related Cooperative Apartment is located to reflect
of
record the sale and assignment of the Cooperative Loan to the Purchaser;
Assignment
of Pledge Agreement in blank showing a complete chain of assignment from the
originator of the related Cooperative Loan to the Company;
Form
UCC-1 and any continuation statements with evidence of filing thereon with
respect to such Cooperative Loan;
Cooperative
Shares with a Stock Certificate in blank attached; Proprietary Lease;
Assignment
of Proprietary Lease, in blank, and all intervening assignments thereof;
Recognition
agreement of the interests of the mortgagee with respect to the Cooperative
Loan
by the Cooperative, the stock of which was pledged by the related Mortgagor
to
the originator of such Cooperative Loan; and
Any
assumption, consolidation or modification agreements relating to any of the
items specified above.
12.
For each Pledged Asset Mortgage Loan, an Assigned Letter of Credit, in
accordance with Section 4.27.
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company’s agent(s):
13.
The original hazard insurance policy and, if required by law, flood insurance
policy, in accordance with Section 4.10 of the Agreement.
14.
Residential loan application.
15.
Mortgage Loan closing statement.
16.
Verification of employment and income, unless originated under the Company's
Limited Documentation program, Xxxxxx Xxx Timesaver Plus.
17.
Verification of acceptable evidence of source and amount of down payment,
including any related asset verification, if applicable.
18.
Credit report on the Mortgagor.
19.
Residential appraisal report, including the related completion certificate,
if
applicable.
20.
Photograph of the Mortgaged Property.
21.
Survey of the Mortgage property, if required by the title company or applicable
law.
22.
Copy of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e. map or plat,
restrictions, easements, sewer agreements, home association declarations, etc.
23.
All required disclosure statements.
24.
If available, termite report, structural engineer's report, water potability
and
septic certification.
25.
Sales contract, if applicable.
26.
Evidence of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files, and all other
processing, underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
27.
Amortization schedule, if available.
28.
Payment history for any Mortgage Loan that has been closed for more than 90
days.
In
the
event an Officer's Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 240 days
of the Closing Date, an Officer's Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(iii) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, and (iv)
specify the date the applicable recorded document will be delivered to the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
Notwithstanding
Paragraphs 1 and 3 above, the Purchaser acknowledges that the Company may
deliver (i) a Mortgage Note for which the chain of endorsements is not identical
to that of the intervening Assignments with respect to such Mortgage Note,
which
shall not affect the enforceability of such Mortgage Note, and/or (ii)
intervening Assignments which are not identical to the chain of endorsements
with respect to such Mortgage Note, which shall not affect the validity of
such
intervening Assignments; provided, however, that such acknowledgment shall
in no
way operate to negate the Purchaser's remedies for the Company’s breach of the
representations and warranties under this Agreement.
EXHIBIT
D
DATA
FILE ELEMENTS
| (1) |
the
Mortgage Loan number;
|
| (2) |
the
street address of the Mortgaged Property including the city, state,
county
and zip code;
|
| (3) |
a
code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a cooperative, a townhouse,
manufactured housing or a unit in a condominium
project;
|
| (4) |
the
Mortgage Interest Rate as of the Cut-off
Date;
|
| (5) |
the
current Monthly Payment;
|
| (6) |
the
original loan term (in number of
months);
|
| (7) |
the
stated maturity date;
|
| (8) |
the
Stated Principal Balance of the Mortgage Loan as of the close of
business
on the Cut-off Date, after deduction of payments of principal due
on or
before the Cut-off Date;
|
| (9) |
the
Loan-to-Value Ratio;
|
| (10) |
a
code indicating whether the Mortgage Loan is an Interest Only Mortgage
Loan;
|
| (11) |
a
code indicating whether the Mortgage Loan is a temporary buydown
(Y or
N);
|
| (12) |
the
Servicing Fee Rate;
|
| (13) |
a
code indicating whether the Mortgage Loan is covered by lender-paid
mortgage insurance (Y or N);
|
| (14) |
a
code indicating whether the Mortgage Loan is a Time$aver® Mortgage Loan (Y
or N);
|
| (15) |
the
Mortgagor's first and last name;
|
| (16) |
a
code indicating a Co-Borrower (Y or
N);
|
| (17) |
the
Co-Borrower’s first and last name, if
applicable;
|
| (18) |
a
code indicating whether the Mortgaged Property is owner-occupied,
a second
home or an investment property;
|
| (19) |
the
remaining months to maturity from the Cut-off Date, based on the
original
amortization schedule;
|
| (20) |
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
| (21) |
the
last Due Date on which a Monthly Payment was actually applied to
the
actual principal balance;
|
| (22) |
the
original principal amount of the Mortgage
Loan;
|
| (23) |
a
code indicating the purpose of the loan (i.e., purchase, financing,
rate/term refinancing, cash-out
refinancing);
|
| (24) |
the
Mortgage Interest Rate at
origination;
|
| (25) |
a
code indicating the documentation style (i.e., full (providing two
years
employment verification - 2 years W-2’s and current pay stub or 2 years
1040’s for self employed borrowers), alternative or
reduced);
|
| (26) |
a
code indicating if the Mortgage Loan is subject to a PMI
Policy;
|
| (27) |
the
Appraised Value of the Mortgage
Property;
|
| (28) |
the
sale price of the Mortgaged Property, if
applicable;
|
| (29) |
the
Mortgagor’s underwriting FICO
score;
|
| (30) |
term
of Prepayment Penalty in years;
|
| (31) |
a
code indicating the product type;
|
| (32) |
a
code indicating the credit grade of the Mortgage
Loan;
|
| (33) |
the
unpaid balance of the Mortgage Loan as of the close of business on
the
Cut-off Date, after deduction of all payments of
principal;
|
| (34) |
the
Mortgage Note date of the Mortgage
Loan;
|
| (35) |
the
mortgage insurance certificate number and percentage of coverage,
if
applicable;
|
| (36) |
the
Mortgagor’s date of birth;
|
| (37) |
if
the Mortgage Loan is a MERS Mortgage Loan, the MIN, if
applicable;
|
| (38) |
employer
name;
|
| (39) |
subsidy
program code;
|
| (40) |
servicer
name;
|
| (41) |
the
combined Loan-to-Value Ratio at
origination;
|
| (42) |
the
total Loan-to-Value Ratio;
|
| (43) |
whether
the Mortgage Loan is convertible (Y or
N);
|
| (44) |
a
code indicating whether the Mortgage Loan is a relocation loan (Y
or
N);
|
| (45) |
a
code indicating whether the Mortgage Loan is a leasehold loan (Y
or
N);
|
| (46) |
a
code indicating whether the Mortgage Loan is an Alt A loan (Y or
N);
|
| (47) |
a
code indicating whether the Mortgage Loan is a no ratio loan (Y or
N);
|
| (48) |
a
code indicating whether the Mortgage Loan is a Pledged Asset Mortgage
Loan
(Y or N);
|
| (49) |
effective
LTV percentage for Pledged Asset Mortgage
Loan;
|
| (50) |
citizenship
type code;
|
| (51) |
a
code indicating whether the Mortgage Loan is a conforming or
non-conforming loan, based on the original loan
balance;
|
| (52) |
the
name of the client for which the Mortgage Loan was
originated;
|
| (53) |
a
code indicating amortization type (1= Full or
2=IO);
|
| (54) |
a
code indicating interest-only terms in months for Interest Only Mortgage
Loans;
|
| (55) |
the
remaining interest-only term for Interest-Only Mortgage
Loans;
|
| (56) |
a
date when first full payment is due after interest-only period is
over for
Interest Only Mortgage Loans;
|
| (57) |
the
current monthly tax and insurance
payment;
|
| (58) |
a
code indicating whether the Mortgage Loan was originated through
the
correspondent, retail or wholesale
channel;
|
| (59) |
front
end debt-to-income ratio;
|
| (60) |
back
end debt-to-income ratio;
|
| (61) |
a
code indicating borrower or lender verification of assets (B or
L);
|
| (62) |
combined
balance of the first lien and second lien mortgage loan balances,
if
applicable;
|
| (63) |
a
code indicating age of Mortgage Loan in
months;
|
| (64) |
a
code indicating delinquency status for last twelve (12) months
(rolling);
|
| (65) |
updated
FICO score;
|
| (66) |
a
code indicating if borrower is self-employed (Y or
N);
|
| (67) |
a
policy number or certificate number of the physical document evidencing
mortgage insurance;
|
| (68) |
a
borrower’s prior rent or mortgage payment history (not associated with
subject Mortgage Loan);
|
| (69) |
the
appraisal form used to document the Appraisal Value of the Mortgage
Property;
|
| (70) |
documentation
type translated to Xxxxx’x
definition;
|
| (71) |
type
of asset verification utilized for decisioning the loan, translated
to
Xxxxx’x definitions;
|
| (72) |
documentation
type translated to Standard and Poor’s
definition;
|
| (73) |
type
of asset verification utilized for decisioning the loan, translated
to
Standard and Poor’s definitions;
|
| (74) |
documentation
type translated to Fitch’s
definition;
|
The
Company shall provide the following
For
the Home Mortgage Disclosure Act (HMDA):
| (75) |
the
Mortgagor’s and co-Mortgagor’s (if applicable)
ethnicity;
|
| (76) |
the
Mortgagor’s and co-Mortgagor’s (if applicable)
race;
|
| (77) |
lien
status;
|
| (78) |
for
cash-out refinance loans, the cash
purpose;
|
| (79) |
the
Mortgagor’s and co-Mortgagor’s (if applicable)
gender;
|
| (80) |
the
Mortgagor’s and co-Mortgagor’s (if applicable) social security
numbers;
|
| (81) |
the
number of units for the property;
|
| (82) |
the
year in which the property was
built;
|
| (83) |
the
qualifying monthly income of the
Mortgagor;
|
| (84) |
the
number of bedrooms contained in the Mortgaged
Property;
|
| (85) |
a
code indicating first time buyer (Y or
N);
|
| (86) |
the
total rental income, if any;
|
The
Seller shall provide the following
for
the Adjustable Rate Mortgage Loans (if applicable):
| (87) |
the
maximum Mortgage Interest Rate under the terms of the Mortgage Note
for
Adjustable Rate Mortgage Loans;
|
| (88) |
the
Periodic Interest Rate Cap for Adjustable Rate Mortgage
Loans;
|
| (89) |
the
Index for Adjustable Rate Mortgage
Loans;
|
| (90) |
the
next Adjustment Date for Adjustable Rate Mortgage
Loans;
|
| (91) |
the
Gross Margin for Adjustable Rate Mortgage
Loans;
|
| (92) |
the
lifetime interest rate cap for Adjustable Rate Mortgage
Loans;
|
| (93) |
the
initial rate cap for Adjustable Rate Mortgage
Loans;
|
| (94) |
the
first adjustment cap for Adjustable Rate Mortgage
Loans;
|
| (95) |
minimum
interest rate allowed per Mortgage Note for Adjustable Rate Mortgage
Loans;
|
| (96) |
look-back
period for Adjustable Rate Mortgage Loans (to determine loan
index);
|
| (97) |
minimum
rate first adjustment period percent for Adjustable Rate Mortgage
Loans;
|
| (98) |
maximum
rate first adjustment period percent for Adjustable Rate Mortgage
Loans.
|
EXHIBIT
E
FORM
OF OPINION OF COUNSEL
@
@
@
@
| Re: | Xxxxx Fargo Bank, N.A. | |
| Mortgage Loan Series @ |
Dear
Sir/Madam:
I
am @ of
Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx Fargo Bank, N.A.
(the
“Company”), with respect to certain matters in connection with the sale by the
Company of the mortgage loans designated as Mortgage Loan Series @ (the
“Mortgage Loans”) pursuant to that certain Seller’s Warranties and Servicing
Agreement by and between the Company and @ (the “Purchaser”), dated as of @,
20__, (the “Agreement”), which sale is in the form of whole Mortgage Loans.
Capitalized terms not otherwise defined herein have the meanings set forth
in
the Agreement.
I
have
examined the following documents:
1. the
Seller’s Warranties and Servicing Agreement;
2. the
Custodial Agreement;
3. the
form
of endorsement of the Mortgage Notes; and
4. such
other documents, records and papers as I have deemed necessary and relevant
as a
basis for this opinion.
To
the
extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreement. I
have
assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
Based
upon the foregoing, it is my opinion that;
| 1. |
The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United
States.
|
| 2. |
The
Company has the power to engage in the transactions contemplated
by the
Agreement, the Custodial Agreement and all requisite power, authority
and
legal right to execute and deliver the Agreement, the Custodial Agreement
and the Mortgage Loans, and to perform and observe the terms and
conditions of such instruments.
|
| 3. |
Each
person who, as an officer or attorney-in-fact of the Company, signed
(a)
the Agreements and (b) any other document delivered prior hereto
or on the
date hereof in connection with the sale and servicing of the Mortgage
Loans in accordance with the Agreements was, at the respective times
of
such signing and delivery, and is, as of the date hereof, duly elected
or
appointed, qualified and acting as such officer or attorney-in-fact,
and
the signatures of such persons appearing on such documents are their
genuine signatures.
|
| 4. |
Each
of the Agreement, the Custodial Agreement, and the Mortgage Loans,
has
been duly authorized, executed and delivered by the Company and is
a
legal, valid and binding agreement enforceable in accordance with
its
terms, subject to the effect of insolvency, liquidation, conservatorship
and other similar laws administered by the Federal Deposit Insurance
Corporation affecting the enforcement of contract obligations of
insured
banks and subject to the application of the rules of equity, including
those respecting the availability of specific performance, none of
which
will materially interfere with the realization of the benefits provided
thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
| 5. |
The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original or facsimile signature in order
to
complete the transactions contemplated by the Agreement and the Custodial
Agreement and in order to execute the endorsements to the Mortgage
Notes
and the assignments of the Mortgages, and the original or facsimile
signature of the officer at the Company executing the Agreement,
the
Custodial Agreement, the endorsements to the Mortgage Notes and the
assignments of the Mortgages represents the legal and valid signature
of
said officer of the Company.
|
| 6. |
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Agreement, the Custodial Agreement or the sale and delivery of the
Mortgage Loans or the consummation of the transactions contemplated
by the
Agreement and the Custodial Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the
Company.
|
| 7. |
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of the Agreement and the Custodial Agreement, will conflict
with or results in or will result in a breach of or constitutes or
will
constitute a default under the charter or by-laws of the Company,
the
terms of any indenture or other agreement or instrument to which
the
Company is a party or by which it is bound or to which it is subject,
or
violates any statute or order, rule, regulations, writ, injunction
or
decree of any court, governmental authority or regulatory body to
which
the Company is subject or by which it is
bound.
|
| 8. |
There
is no action, suit, proceeding or investigation pending or, to the
best of
my knowledge, threatened against the Company which, in my opinion,
either
in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment
of the
right or ability of the Company to carry on its business substantially
as
now conducted or in any material liability on the part of the Company
or
which would draw into question the validity of the Agreement, and
the
Custodial Agreement, or of any action taken or to be taken in connection
with the transactions contemplated thereby, or which would be likely
to
impair materially the ability of the Company to perform under the
terms of
the Agreement and the Custodial
Agreement.
|
| 9. |
For
purposes of the foregoing, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless
the
potential litigant or governmental authority has manifested to the
legal
department of the Company or an employee of the Company responsible
for
the receipt of process a present intention to initiate such proceedings;
nor have I regarded any legal or governmental actions, investigations
or
proceedings as including those that are conducted by state or federal
authorities in connection with their routine regulatory activities.
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient fully to transfer all right, title
and
interest of the Company thereto as noteholder and mortgagee, apart
from
the rights to service the Mortgage Loans pursuant to the
Agreement.
|
| 10. |
The
form of endorsement that is to be used with respect to the Mortgage
Loans
is legally valid and sufficient to duly endorse the Mortgage Notes
to the
Purchaser. Upon the completion of the endorsement of the Mortgage
Notes
and the completion of the assignments of the Mortgages, and the recording
thereof, the endorsement of the Mortgage Notes, the delivery to the
Custodian of the completed assignments of the Mortgages, and the
delivery
of the original endorsed Mortgage Notes to the Custodian would be
sufficient to permit the entity to which such Mortgage Note is initially
endorsed at the Purchaser’s direction, and to whom such assignment of
Mortgages is initially assigned at the Purchaser’s direction, to avail
itself of all protection available under applicable law against the
claims
of any present or future creditors of the Company, and would be sufficient
to prevent any other sale, transfer, assignment, pledge or hypothecation
of the Mortgages and the Mortgage Notes by the Company from being
enforceable.
|
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
Sincerely,
@
@
@/@
EXHIBIT
F
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company][Name of Subservicer]
shall address, as a minimum,
the
criteria identified below as “Applicable Servicing Criteria”
|
Reg
AB
Reference
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
Inapplicable
Servicing Criteria
|
|
|
General
Servicing Considerations
|
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and
procedures are instituted to monitor the third party’s performance and
compliance
with such servicing activities.
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating
in the servicing function throughout the reporting period in the
amount
of coverage required by and otherwise in accordance with the terms
of
the transaction agreements.
|
X
|
|
|
|
Cash
Collection and Administration
|
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction
agreements.
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made only by authorized personnel.
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts
established as a form of vercollateralization, are separately maintained
(e.g., with respect to commingling of cash) as set forth in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution
as set forth in the transaction agreements. For purposes of this
criterion,
“federally insured depository institution” with respect to a foreign financial
institution means a foreign financial institution that meets the
requirements
of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related bank accounts, including custodial accounts and related bank
clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff
date, or such other number of days specified in the transaction agreements;
(C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days
of their original identification, or such other number of days specified
in
the transaction
agreements.
|
X
|
|
|
|
Investor
Remittances and Reporting
|
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained
in accordance with the transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction agreements;
(B) provide information calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with the Commission
as
required by its rules and regulations; and (D) agree with investors’ or
the trustee’s
records as to the total unpaid principal balance and number of mortgage
loans serviced by the
Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s investor records, or such other number of days specified in
the
transaction agreements.
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks,
or other form of payment, or custodial bank statements.
|
X
|
|
|
|
Pool Asset Administration |
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated
to principal, interest or other items (e.g., escrow) in accordance
with
the related mortgage loan
documents.
|
X
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by authorized
personnel in accordance with the transaction agreements and related
pool asset documents.
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable)
are initiated, conducted and concluded in accordance with the timeframes
or other requirements established by the transaction
agreements.
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified
in the transaction agreements, and describe the entity’s activities in
monitoring
delinquent mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or
unemployment).
|
X
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A)
such funds are analyzed, in accordance with the obligor’s mortgage loan
documents,
on at least an annual basis, or such other period specified in the
transaction
agreements; (B) interest on such funds is paid, or credited, to obligors
in accordance with applicable mortgage loan documents and state
laws;
and (C) such funds are returned to the obligor within 30
calendar days
of
full repayment of the related mortgage loans, or such other
number of
days
specified in the transaction
agreements.
|
X
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are
made on or before the related penalty or expiration dates, as indicated
on
the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or omission.
|
X
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the obligor’s records maintained by the servicer, or such other number
of days specified in the transaction
agreements.
|
X
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in accordance with the transaction agreements.
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through
(3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction
agreements.
|
|
X
|
EXHIBIT
G
SARBANES
CERTIFICATION
Re:
The [
] agreement dated as of [ ], 200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [Name of
Servicer] (the “Servicer”), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification, that:
(1)
I
have reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer
Servicing Information”);
(2)
Based
on my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3)
Based
on my knowledge, all of the Servicer Servicing Information required to be
provided by the Servicer under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4)
I am
responsible for reviewing the activities performed by the Servicer under the
Agreement, and based on my knowledge and the compliance review conducted in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement in all material respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date:
By:___________________________
Name:_________________________
Title:__________________________
EXHIBIT
H
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
____________,
20__
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT, dated _____________, 20__ between
_________________, a _________________ corporation having an office at
_________________ ("Assignor") and _____________, having an office at
____________ ("Assignee"):
For
and
in consideration of the sum of one dollar ($1.00) and other valuable
consideration the receipt and sufficiency of which are hereby acknowledge,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1.
The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under that certain
Seller's Warranties and Servicing Agreement, (the "Seller's Warranties and
Servicing Agreement"), dated as of _________________, by and between
_________________ (the "Purchaser"), and _________________ (the "Company"),
and
the Mortgage Loans delivered thereunder by the Company to the Assignor, and
that
certain Custodial Agreement, (the "Custodial Agreement"), dated as of
_________________, by and among the Company, the Purchaser and _________________
(the "Custodian").
2.
The
Assignor warrants and represents to, and covenants with, the Assignee that:
a.
The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b.
The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to the
Seller's Warranties and Servicing Agreement or the Mortgage Loans;
c.
The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Seller's Warranties and Servicing
Agreement, the Custodial Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of, and has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Seller's Warranties
and
Servicing Agreement or the Mortgage Loans; and
d.
Neither the Assignor nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security with, any person in any manner,
or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of
the
Mortgage Loans under the Securities Act of 1933 (the "33 Act") or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
33
Act or require registration pursuant thereto.
3.
That
Assignee warrants and represent to, and covenants with, the Assignor and the
Company pursuant to Section 12.10 of the Seller's Warranties and Servicing
Agreement that:
a.
The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Seller's Warranties and Servicing Agreement, the Mortgage
Loans and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Company and the Assignor all
of
the Assignor's obligations as purchaser thereunder;
b.
The
Assignee understands that the Mortgage Loans have not been registered under
the
33 Act or the securities laws of any state;
c.
The
purchase price being paid by the Assignee for the Mortgage Loans are in excess
of $250,000.00 and will be paid by cash remittance of the full purchase price
within 60 days of the sale;
d.
The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the Assignee nor
any
person authorized to act therefor has offered to sell the Mortgage Loans by
means of any general advertising or general solicitation within the meaning
of
Rule 502(c) of US Securities and Exchange Commission Regulation D, promulgated
under the 1933 Act;
e.
The
Assignee considers itself a substantial sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
f.
The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
g.
Neither the Assignee nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security to, or solicited any offer to
buy
or accepted a transfer, pledge or other disposition of the Mortgage Loans,
any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security with, any person in any manner
which would constitute a distribution of the Mortgage Loans under the 33 Act
or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 33 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Mortgage Loans; and
h.
Either
(1) the Assignee is not an employee benefit plan ("Plan") within the meaning
of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan (also "Plan") within the meaning of section 4975(e)(1)
of
the Internal Revenue Code of 1986 ("Code"), and the Assignee is not directly
or
indirectly purchasing the Mortgage Loans on behalf of, investment manager of,
as
named fiduciary of, as Trustee of, or with assets of, a Plan; or (2) the
Assignee's purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
i.
The
Assignee's address for purposes of all notices and correspondence related to
the
Mortgage Loans and the Seller's Warranties and Servicing Agreements is:
__________________________________
__________________________________
__________________________________
Attention:
_________________
The
Assignee's wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Seller's Warranties and Servicing
Agreement is:
__________________________________
__________________________________
__________________________________
Attention:
_________________
4.
From
and after the date hereof, the Company shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, the Company shall recognize
the
Assignee as the owner of the Mortgage Loans and the Company shall service the
Mortgage Loans for the benefit of the Assignee pursuant to the Seller’s
Warranties and Servicing Agreement, the terms of which are incorporated herein
by reference. It is the intention of the Assignor, the Company and the Assignee
that the Seller’s Warranties and Servicing Agreement shall be binding upon and
inure to the benefit of the Company and the Assignee and their respective
successors and assigns.
[Signatures
Follow]
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption to
be
executed by their duly authorized officers as of the date first above written.
| ___________________________ | ___________________________ | |
| Assignor | Assignee | |
| By: ____________________________ | By: ____________________________ | |
| Name: __________________________ | Name: __________________________ | |
| Its: _____________________________ | Its: _____________________________ | |
| Tax Payer Identification No.: | Tax Payer Identification No.: | |
| ____________________________ | ____________________________ |
EXHIBIT
I
FORM
OF SECURITY RELEASE CERTIFICATION
Release
of Security Interest
Xxxxx
Fargo Bank, N.A. (the “Company”),
hereby
relinquishes any and all right, title and interest it may have in and to the
Mortgage Loans described on the Mortgage Loan Schedule, which is attached as
Exhibit A (excluding servicing rights) to the Agreement, upon receipt of
$_________
at
the wire
instructions below, for such Mortgage Loans (the “Date and Time of Sale”), and
certifies that all Mortgage Loan Documents as contained in the Custodial
Mortgage File have been delivered and released to Redwood Trust, Inc. or its
designees as of the Date and Time of Sale.
Xxxxx
Fargo Bank, N.A. Wire Instructions:
| Bank: | Xxxxx Fargo Bank, N.A. | |
| ABA #: | ||
| FBO: | Xxxxx Fargo Home Mortgage | |
| A/C#: | ||
| Notify: | Xxxxx Division | |
| Ref: | WFHM 20__-___ |
Date:
Xxxxx
Fargo Bank, N.A.,
By:___________________________________
Name:
Title:
XXXXX
FARGO - SEQUOIA TO TRUSTEE
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
For
Mortgage
Loan Flow Purchase, Sale and Servicing Agreement
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of August 30, 2007
(the “Assignment”), is entered into among Sequoia Residential Funding, Inc. (the
“Assignor”), Xxxxx Fargo Bank, N.A., as the seller and the servicer (the
“Company”), and HSBC Bank USA, National Association ("HSBC Bank") as Trustee
under a Pooling and Servicing Agreement dated as of August 1, 2007 (the “Pooling
and Servicing Agreement”), among the Assignor, as Depositor, HSBC Bank (in such
Trustee capacity, the “Assignee”) and Xxxxx Fargo Bank, N. A., as Master
Servicer and Securities Administrator.
RECITALS
WHEREAS,
Redwood Trust, Inc. (“Redwood”) and the Company have entered into that certain
(i) Seller’s Warranties and Servicing Agreement, dated as of May 1, 2007 (WFHM
2007-W17 and WFHM 2007-W18) (the “May Seller’s Warranties and Servicing
Agreement”) and (ii) Seller’s Warranties and Servicing Agreement, dated as of
June 1, 2007 (WFHM 2007-W24) (the “June Seller’s Warranties and Servicing
Agreement” and together with the May Seller’s Warranties and Servicing
Agreement, the “Seller’s Warranties and Servicing Agreement”), and pursuant to
the (i) Commitment Letter(s) issued under the May Seller’s Warranties and
Servicing Agreement and listed in Appendix
A
hereto
(the “Commitment Letter(s))” and (ii) Trade Stipulation Sheet issued under the
June Seller’s Warranties and Servicing Agreement and listed in Appendix
A
hereto
(the “TSS” and, together with the Commitment Letter(s) and the Seller’s
Warranties and Servicing Agreement, the “Agreements”) Redwood acquired from the
Company certain Mortgage Loans (the “Mortgage Loans”) and pursuant to the
Assignment, Assumption and Recognition Agreement dated August 30, 2007 between
Redwood and RWT Holdings, Inc. (“RWT”) (the “Redwood Assignments,” and together
with the Agreements, the “Master Purchase Agreements”) Redwood has sold to RWT
the Mortgage Loans previously acquired by Redwood under the Agreements, and
the
Company has agreed to service such Mortgage Loans; and
WHEREAS,
RWT has previously sold, assigned and transferred all of its right, title and
interest in certain of the Mortgage Loans (the “Specified Mortgage Loans”) which
are listed on the mortgage loan schedule attached as Exhibit
I
hereto
(the “Specified Mortgage Loan Schedule”) and certain rights under the Master
Purchase Agreements with respect to the Specified Mortgage Loans to Assignor;
and
WHEREAS,
the parties hereto have agreed that the Specified Mortgage Loans shall be
subject to the terms of this Assignment.
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
1. Assignment
and Assumption.
(a) Effective
on and as of the date hereof, the Assignor hereby pledges, assigns and transfers
to the Assignee all of its right, title and interest in the Specified Mortgage
Loans and all of its rights (but none of the Purchaser’s obligations) provided
under the Master Purchase Agreements to the extent relating to the Specified
Mortgage Loans, the Assignee hereby accepts such assignment from the Assignor,
and the Company hereby acknowledges such assignment and assumption.
(b) Effective
on and as of the date hereof, the Assignor represents and warrants to the
Assignee that the Assignor has not taken any action that would serve to impair
or encumber the Assignee’s interest in the Specified Mortgage Loans since the
date of the Assignor’s acquisition of the Specified Mortgage Loans.
2. Recognition
of the Assignee.
From
and
after the date hereof, subject to Section 3 below, the Company shall recognize
the Assignee as the holder of the rights and benefits of the Purchaser with
respect to the Specified Mortgage Loans and the Company will service the
Specified Mortgage Loans for the Assignee in accordance with the June Seller’s
Warranties and Servicing Agreement (as amended hereby) as if the Assignee and
the Company had entered into a separate servicing agreement for the servicing
of
the Specified Mortgage Loans in the form of the June Seller’s Warranties and
Servicing Agreement (as amended hereby) with the Assignee as the Purchaser
thereunder, the terms of which June Seller’s Warranties and Servicing Agreement
are incorporated herein by reference and amended hereby. It is the intention
of
the parties hereto that this Assignment will be a separate and distinct
agreement, and the entire agreement, between the parties hereto to the extent
of
the Specified Mortgage Loans and shall be binding upon and for the benefit
of
the respective successors and assigns of the parties hereto.
3. Assignor’s
Continuing Rights and Responsibilities.
Notwithstanding
Sections 1 and 2 above, the parties hereto agree that the Assignor rather than
the Assignee shall have the ongoing rights to take action and the
responsibilities of the Purchaser under the following sections of the June
Seller’s Warranties and Servicing Agreement:
June
Seller’s Warranties and Servicing Agreement:
|
Section
|
Matter
|
||
|
3.03
|
(a)
|
Repurchase.
|
|
|
4.01,
2nd¶
|
(b)
|
Company
to Act as Servicer.
|
|
|
4.02
|
(c)
|
Liquidation
of Mortgage Loans.
|
|
|
4.16
|
(d)
|
Title,
Management and Disposition of REO Property.
|
|
|
4.22
|
(e)
|
Confidentiality/Protection
of Customer Information.
|
|
|
6.01
|
(f)
|
Transfers
of Mortgaged Property.
|
|
2
|
6.08
|
(g)
|
Right
to Examine Company Records.
|
|
|
7.01
|
(h)
|
Provision
of Information.
|
|
|
7.02
|
(i)
|
Financial
Statements; Servicing Facility.
|
|
|
8.01
|
(j)
|
Indemnification;
Third Party Claims.
|
|
|
8.03
|
(k)
|
Limitation
on Liability of Company and Others.
|
|
|
8.04
|
(l)
|
Limitation
on Resignation and Assignment by
Company.
|
In
addition, the Company agrees to furnish to the Assignor (except with respect
to
Section 5.02, which shall only be to the Master Servicer) and the Master
Servicer copies of reports, notices, statements and other communications
required to be delivered by the Company pursuant to any of the sections of
the
June Seller’s Warranties and Servicing Agreement referred to above and under the
following sections, at the times therein specified:
|
June
Seller’s Warranties and Servicing Agreement:
|
|||
|
Section
|
|||
|
4.09
|
(a)
|
Protection
of Accounts.
|
|
|
5.02
|
(b)
|
Statements
to Purchaser.
|
|
|
6.04
|
(c)
|
Annual
Statements as to Compliance.
|
|
|
6.06
|
(d)
|
Report
on Assessment of Compliance and Attestation.
|
|
|
9.01
|
(e)
|
Agency
Transfers Securitization Transactions and Whole Loan
Transfers.
|
|
4. Amendment
to the June Seller’s Warranties and Servicing Agreement.
The
June
Seller’s Warranties and Servicing Agreement is hereby amended as set forth in
Appendix
B
hereto
with respect to the Specified Mortgage Loans.
3
5. Representations
and Warranties.
(a) Each
of
the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
(b) Each
of
the parties hereto 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 insolvency,
conservatorship or other similar laws administered by the Federal Deposit
Insurance Corporation affecting the enforcement of contract obligations of
insured banks and subject to the application of the rules of
equity.
6. Continuing
Effect.
Except
as
contemplated hereby, the Master Purchase Agreements shall remain in full force
and effect in accordance with its terms. This Assignment constitutes a
Reconstitution Agreement as contemplated in Article IX of the Seller’s
Warranties and Servicing Agreement and the Reconstitution Date shall be the
date
hereof with respect to the Specified Mortgage Loans listed on Exhibit
I
on the
date hereof.
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.
Any
notices or other communications permitted or required under the Master Purchase
Agreements to be made to the Assignor, Assignee and the Company shall be made
in
accordance with the terms of the Master Purchase Agreements and shall be sent
to
the Assignor, Assignee and the Company as follows:
Sequoia
Residential Funding, Inc.
Xxx
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Corporate Trust & Loan Agency
Xxxxx
Fargo Bank, N.A.
1
Home
Xxxxxx
Xxx
Xxxxxx, XX 00000-0000
Attention:
Xxxx X. Xxxxx, MAC X2302-033
Fax:
515/000-0000
4
Xxxxx
Fargo Bank, N.A.
1
Home
Xxxxxx
Xxx
Xxxxxx, XX 00000-0000
Attention:
General Counsel MAC X2401-06T
or
to
such other address as may hereafter be furnished by the Assignor, Assignee
or
the Company to the other parties in accordance with the provisions of the Master
Purchase Agreements.
9. 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.
10. Definitions.
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Master Purchase Agreements.
11. Master
Servicer.
The
Company hereby acknowledges that the Assignee has appointed Xxxxx Fargo Bank,
N.
A. (the “Master Servicer”) to act as master servicer and securities
administrator under the Pooling and Servicing Agreement and hereby agrees to
treat all inquiries, instructions, authorizations and other communications
from
the Master Servicer as if the same had been received from the Assignee. The
Master Servicer, acting on behalf of the Assignee, shall have the rights of
the
Assignee as the Purchaser under the June Seller’s Warranties and Servicing
Agreement to enforce the obligations of the Company thereunder. Any notices
or
other communications permitted or required under the Master Purchase Agreements
to be made to the Assignee shall be made in accordance with the terms of the
Master Purchase Agreements and shall be sent to the Master Servicer at the
following address:
Xxxxx
Fargo Bank, N. A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
(or,
for
overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000)
Attention:
Sequoia Mortgage Trust 2007-4
or
to
such other address as may hereafter be furnished by the Master Servicer to
the
Company. Any such notices or other communications permitted or required under
the Master Purchase Agreements may be delivered in electronic format unless
manual signature is required in which case a hard copy of such report or
communication shall be required.
The
Company further acknowledges that the Assignor has engaged the Master Servicer
to provide certain default administration and that the Master Servicer, acting
as agent of the Assignor, may exercise any of the rights of the Purchaser
retained by the Assignor in Section 3 above.
5
The
Company shall make all distributions under the June Seller’s Warranties and
Servicing Agreement,
as they relate to the Specified Mortgage Loans, to the Master Servicer by wire
transfer of immediately funds to:
Xxxxx
Fargo Bank, NA
San
Francisco, CA
ABA#
000-000-000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
53173800
12. Successors
and Assigns.
Upon
a
transfer of the Specified Mortgage Loans by the Assignee (other than in respect
of repurchases pursuant to Section 3.03 or Section 6.02 of the Seller’s
Warranties and Servicing Agreement, as applicable) to a buyer (“Buyer”), such
transfer shall constitute a Reconstitution subject to the terms of Article
IX of
the Seller’s Warranties and Servicing Agreement. Upon the closing of such
transfer, the rights and obligations of Purchaser retained by the Assignor
pursuant to this Assignment shall automatically terminate and the Buyer shall
be
deemed to possess all of the rights and obligations of Purchaser under the
Seller’s Warranties and Servicing Agreement, provided,
however,
that the
Assignor shall remain liable for any obligations as Purchaser arising from
or
attributable to the period from the date hereof to the closing date of such
transfer.
6
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
ASSIGNOR:
SEQUOIA
RESIDENTIAL FUNDING, INC.
By:
_____________________________
Name:
___________________________
Title:
____________________________
ASSIGNEE:
HSBC
BANK
USA, NATIONAL
ASSOCIATION
By:
_____________________________
Name:
___________________________
Title:
____________________________
COMPANY:
XXXXX
FARGO BANK, N.A.
By:
_____________________________
Name:
___________________________
Title:
____________________________
7
EXHIBIT
I
Specified
Mortgage Loan Schedule
APPENDIX
A
|
Commitment
Letter(s)
|
Trade
Stipulation Sheet
|
|
|
The
Commitment Letter(s), each dated as of April 12, 2007, by and between
Redwood Trust, Inc. and Xxxxx Fargo Bank, N.A.
|
The
Trade Stipulation Sheet, dated as of June 4, 2007, by and between
Redwood
Trust, Inc. and Xxxxx Fargo Bank, N.A.
|
|
APPENDIX
B
1. The
definition of “Closing Date” in the June Seller’s Warranties and Servicing
Agreement is hereby revised to read as follows:
"Closing
Date:
August
30, 2007, except with respect to Section 2.03, Section 2.04, Section 2.07,
Section 3.02, Section 3.03, the Commitment Letter(s) and the Trade Stipulation
Sheet.”
2. Notwithstanding
anything to the contrary in the Master Purchase Agreements, any Custodial
Accounts established by the Company pursuant to Section 4.04 of the June
Seller’s Warranties and Servicing Agreement shall qualify as Eligible Accounts
as defined in the Pooling and Servicing Agreement.
3. Section
4.04, first sentence of the paragraph is revised to read as
follows:
"The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Custodial Accounts, in the form of a time deposit or demand
accounts, titled “HSBC Bank USA, National Association, in trust for the holders
of Sequoia Mortgage Trust 2007-4 Mortgage Pass-Through
Certificates.”
4. Section
4.06, first sentence of the paragraph is revised to read as
follows:
"The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart
from any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts, titled “HSBC
Bank USA, National Association, in trust for the holders of Sequoia Mortgage
Trust 2007-4 Mortgage Pass-Through Certificates.”
5. Section
4.12 is amended to add the following at the end of such section:
“The
Company shall upon written request provide to the Purchaser, any Master Servicer
and any Depositor, copies or other evidence of the Fidelity Bond and errors
and
omissions insurance policy upon request.”
6. Section
5.02 is hereby deleted in its entirety and replaced with the
following:
“Not
later than the tenth (10th)
calendar day of each month, the Company shall furnish to the Purchaser in either
written or electronic format, a delinquency report and a monthly remittance
advice, each in a form mutually acceptable to the Company and the Purchaser,
as
to the remittance period ending on the last day of the preceding
month.”
7. Notwithstanding
any provision in the Master Purchase Agreements to the contrary, the Company
agrees that it will report to the Master Servicer on a monthly basis on the
date
specified therein using the formats attached hereto as Exhibits A, B and C,
or
such other format as may be mutually agreed upon between the Company and the
Master Servicer.
EXHIBIT
A
|
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
A: 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 ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
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 ($)
|
11
|
|
Exhibit
A: Continued
|
Standard
Loan Level File Layout
|
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
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
|
Exhibit
B : 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
B: 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
B: 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
B: 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
|
Exhibit
C: 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.
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.
|
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
C: 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
|
