ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXECUTION
VERSION
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR
Agreement”)
made
as of May 1, 2007, among HSBC Bank, National Association (the “Assignor”),
HSI
Asset Securitization Corporation (the “Assignee”)
and
Decision One Mortgage Company, LLC (the “Company”).
In
consideration of the mutual promises contained herein the parties hereto
agree
that the residential mortgage loans (the “Assigned
Loans”)
listed
on Attachment 1 annexed hereto (the “Assigned
Loan Schedule”)
purchased by the Assignor from the Company pursuant to (a) the Master Mortgage
Loan Purchase and Interim Servicing Agreement, dated as of December 15,
2006,
between the Assignor and the Company (the “Purchase
Agreement”),
shall
be subject to the terms of this AAR Agreement. Capitalized terms used herein
but
not defined shall have the meanings ascribed to them in the Purchase
Agreement.
Assignment
and Assumption
1. The
Assignor hereby grants, transfers and assigns to the Assignee all of the
right,
title and interest of the Assignor in the Assigned Loans and, as they relate
to
the Assigned Loans, all of its right, title and interest in, to and under
the
Purchase Agreement. The Assignor specifically reserves and does not assign
to
the Assignee any right title and interest in, to or under any Mortgage
Loans
subject to the Purchase Agreement other than those set forth on Attachment
l.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this AAR
Agreement to HSI Asset Securitization Corporation Trust 2007-HE2 (the
“Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of May
1, 2007
(the “Pooling
Agreement”),
among
the Assignee as Depositor, the Trustee, the Master Servicer, Citibank,
N.A. as
Securities Administrator (the “Securities
Administrator”)
and
Xxxxx Fargo Bank, N.A. as custodian (the “Custodian”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee, the Securities Administrator and the Master
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iv) all references to the Purchaser
(insofar as they relate to the rights, title and interest and, with respect
to
obligations of the Purchaser, only insofar as they relate to the enforcement
of
the representations, warranties and covenants of the Company) under the
Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed
to refer
to the Trust (including the Trustee, the Securities Administrator and the
Master
Servicer acting on the Trust’s behalf). Neither the Company nor the Assignor
shall amend or agree to amend, modify, waive, or otherwise alter any of
the
terms or provisions of the Purchase Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or
the
Company’s performance under the Purchase Agreement with respect to the Mortgage
Loans without the prior written consent of the Assignee.
Representations;
Warranties and Covenants
3. Assignor
warrants and represents to Assignee and Company as of the date
hereof:
a.
|
Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of
the date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been
given
thereunder;
|
b.
|
Assignor
is the lawful owner of the Assigned Loans with full right to
transfer the
Assigned Loans and any and all of its interests, rights and obligations
under the Purchase Agreement as they relate to the Assigned Loans,
free
and clear of any and all liens, claims and encumbrances; and
upon the
transfer of the Assigned Loans to Assignee as contemplated herein,
Assignee shall have good title to each and every Assigned Loan,
as well as
any and all of Assignor’s interests, rights and obligations under the
Purchase Agreement as they relate to the Assigned Loans, free
and clear of
any and all liens, claims and
encumbrances;
|
c.
|
Assignor
has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to Company with respect
to the
Assigned Loans or the Purchase
Agreement;
|
d.
|
Assignor
is a corporation duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its formation, and has
all requisite
power and authority to acquire, own and sell the Assigned
Loans;
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e.
|
Assignor
has full power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor’s business and
will not conflict with, or result in a breach of, any of the
terms,
conditions or provisions of Assignor’s charter or by-laws or any legal
restriction, or any material agreement or instrument to which
Assignor is
now a party or by which it is bound, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which Assignor
or its
property is subject. The execution, delivery and performance
by Assignor
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
action on
the part of Assignor. This AAR Agreement has been duly executed
and
delivered by Assignor and, upon the due authorization, execution
and
delivery by Assignee and Company, will constitute the valid and
legally
binding obligation of Assignor enforceable against Assignor in
accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws
now or
hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at
law;
|
f.
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignor in connection with the execution,
delivery or
performance by Assignor of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
|
g.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignor’s knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignor, would adversely
affect
Assignee’s execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignor’s ability to perform its obligations under this
AAR Agreement.
|
4. Assignee
warrants and represents to, and covenants with, Assignor and Company as
of the
date hereof:
a.
|
Assignee
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its organization and has all requisite power
and
authority to acquire and hold the Assigned
Loans;
|
b.
|
Assignee
has full power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignee’s business and
will not conflict with, or result in a breach of, any of the
terms,
conditions or provisions of Assignee’s organizational documentation or any
legal restriction, or any material agreement or instrument to
which
Assignee is now a party or by which it is bound, or result in
the
violation of any law, rule, regulation, order, judgment or decree
to which
Assignee or its property is subject. The execution, delivery
and
performance by Assignee of this AAR Agreement and the consummation
by it
of the transactions contemplated hereby, have been duly authorized
by all
necessary action on the part of Assignee. This AAR Agreement
has been duly
executed and delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and Company, will constitute
the valid
and legally binding obligation of Assignee enforceable against
Assignee in
accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws
now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at
law;
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c.
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignee in connection with the execution,
delivery or
performance by Assignee of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
|
d.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignee’s knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would adversely
affect
Assignee’s execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignee’s ability to perform its obligations under this
AAR Agreement.
|
5. Company
warrants and represents to, and covenants with, Assignor and Assignee as
of the
date hereof:
a.
|
Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of
the date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been
given
thereunder;
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b.
|
Company
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its organization, and has all requisite power
and
authority to perform its obligations under the Purchase
Agreement;
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c.
|
Company
has full power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company’s business and
will not conflict with, or result in a breach of, any of the
terms,
conditions or provisions of Company’s organizational documentation or any
legal restriction, or any material agreement or instrument to
which
Company is now a party or by which it is bound, or result in
the violation
of any law, rule, regulation, order, judgment or decree to which
Company
or its property is subject. The execution, delivery and performance
by
Company of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by
all
necessary action on the part of Company. This AAR Agreement has
been duly
executed and delivered by Company, and, upon the due authorization,
execution and delivery by Assignor and Assignee, will constitute
the valid
and legally binding obligation of Company, enforceable against
Company in
accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws
now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at
law;
|
d.
|
No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or
made by Company in connection with the execution, delivery or
performance
by Company of this AAR Agreement, or the consummation by it of
the
transactions contemplated hereby;
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e.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Company’s knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Company, would adversely
affect
Company’s execution or delivery of, or the enforceability of, this AAR
Agreement, or the Company’s ability to perform its obligations under this
AAR Agreement; and
|
f.
|
Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the
Trust,
that the representations and warranties set forth in Subsections
7.01 and
7.02 of the Purchase Agreement, are true and correct as of the
date hereof
(except for the representations and warranties set forth in Subsections
7.02 (xviii), (xix), (xxiii) and (xxxiv) of the Purchase Agreement,
which
the Company hereby represents and warrants are true and correct
as of the
Servicing Transfer Date), except that the representation and
warranty set
forth in Section 7.02(i) shall, for purposes of this AAR Agreement,
relate
to the Mortgage Loan Schedule attached
hereto.
|
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee, the Securities
Administrator and the Master Servicer acting on the Trust’s behalf) in
connection with any breach of the representations and warranties made by
the
Company set forth in Section 4 hereof shall be as set forth in Subsection
7.03
of the Purchase Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth
therein).
Miscellaneous
7. All
demands, notices and communications related to the Assigned Loans, the
Agreements and this AAR Agreement shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a.
|
In
the case of Company,
|
Decision
One Mortgage Company, LLC
0000 XXXX
Xxx
Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attn: HALO
2007-1
b.
|
In
the case of Assignor,
|
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
HALO 2007-1
c.
|
In the
case of Assignee,
|
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
HALO 2007-1
8. This
AAR
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
9. No
term
or provision of this AAR Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such
waiver
or modification is sought to be enforced.
10. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may
be
merged or consolidated shall without the requirement for any further writing,
be
deemed Assignor, Assignee or Company, respectively hereunder.
11. This
AAR
Agreement shall survive the conveyance of the Assigned Loans as contemplated
in
this AAR Agreement.
12. This
AAR
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
13. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of
this AAR
Agreement shall control.
14. The
parties hereto acknowledge and agree that the Company will not be required
to
deliver Static Pool Information (as defined in the Purchase Agreement)
in
respect of the Assigned Loans.
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as
of the
day and year first above written.
HSBC
BANK USA, NATIONAL ASSOCIATION
Assignor
By:
/s/
Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Officer
#15255
Assignee
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Vice President
DECISION
ONE MORTGAGE COMPANY, LLC
Company
By:
/s/
Xxxxx X. Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title: VP
Secondary Marketing
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee
By:
/s/
Xxxxxxx
Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Authorized
Signer
CITIMORTGAGE,
INC.,
as
Master Servicer
By:
/s/
Xxxxx
X. Xxxxxx
Name: Xxxxx
X.
Xxxxxx
Title: Sr.
Vice
President
Attachment
1
Assigned
Loan Schedule
Attachment
2
Purchase
Agreement
EXECUTION
VERSION
|
MASTER
MORTGAGE LOAN PURCHASE AND INTERIM SERVICING
AGREEMENT
DECISION
ONE MORTGAGE COMPANY, LLC
Seller
and
Interim Servicer
HSBC
BANK
USA, NATIONAL ASSOCIATION
Initial
Purchaser
Dated
as
of December 15, 2006
First
and
Second Lien, Fixed and Adjustable Rate Mortgage Loans
TABLE
OF
CONTENTS
Page
SECTION
1.
|
Definitions.
|
1
|
SECTION
2.
|
Agreement
to Purchase.
|
14
|
SECTION
3.
|
Mortgage
Loan Schedules.
|
14
|
SECTION
4.
|
Purchase
Price.
|
14
|
SECTION
5.
|
Examination
of Mortgage Files.
|
14
|
SECTION
6.
|
Conveyance
from Seller to Initial Purchaser.
|
15
|
Subsection
6.01.
|
Conveyance
of Mortgage Loans; Possession of Servicing Files.
|
15
|
Subsection
6.02.
|
Books
and Records.
|
15
|
Subsection
6.03.
|
Delivery
of Mortgage Loan Documents.
|
15
|
SECTION
7.
|
Representations,
Warranties and Covenants of the Seller: Remedies for
Breach.
|
16
|
Subsection
7.01.
|
Representations
and Warranties Respecting the Seller.
|
16
|
Subsection
7.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
19
|
Subsection
7.03.
|
Remedies
for Breach of Representations and Warranties.
|
33
|
Subsection
7.04.
|
Repurchase
of Certain Mortgage Loans; Premium Protection.
|
35
|
SECTION
8.
|
Closing.
|
35
|
SECTION
9.
|
Closing
Documents.
|
36
|
SECTION
10.
|
Costs.
|
37
|
SECTION
11.
|
Servicer’s
Servicing Obligations.
|
38
|
SECTION
12.
|
Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole
Loan
Transfer or a Pass-Through Transfer on One or More Reconstitution
Dates.
|
38
|
SECTION
13.
|
COMPLIANCE
WITH REGULATION AB
|
40
|
Subsection
13.01.
|
Intent
of the Parties; Reasonableness.
|
40
|
Subsection
13.02.
|
Additional
Representations and Warranties of the Seller.
|
41
|
Subsection
13.03.
|
Information
to Be Provided by the Seller.
|
41
|
Subsection
13.04.
|
Reserved.
|
44
|
Subsection
13.05.
|
Reserved.
|
44
|
Subsection
13.06.
|
Reserved.
|
44
|
Subsection
13.07.
|
Indemnification;
Remedies.
|
44
|
i
SECTION
14.
|
The
Seller and the Servicer.
|
46
|
Subsection
14.01.
|
Additional
Indemnification by the Seller and the Servicer.
|
46
|
Subsection
14.02.
|
Merger
or Consolidation of the Seller and the Servicer.
|
47
|
Subsection
14.03.
|
Limitation
on Liability of the Seller, the Servicer and Others.
|
47
|
Subsection
14.04.
|
Servicer
Not to Resign.
|
48
|
Subsection
14.05.
|
No
Transfer of Servicing.
|
48
|
SECTION
15.
|
Default.
|
48
|
Subsection
15.01.
|
Events
of Default.
|
48
|
Subsection
15.02.
|
Waiver
of Defaults.
|
50
|
SECTION
16.
|
Termination.
|
50
|
SECTION
17.
|
Successor
to the Servicer.
|
50
|
SECTION
18.
|
Financial
Statements.
|
51
|
SECTION
19.
|
Mandatory
Delivery: Grant of Security Interest.
|
52
|
SECTION
20.
|
Notices.
|
52
|
SECTION
21.
|
Severability
Clause.
|
53
|
SECTION
22.
|
Counterparts.
|
53
|
SECTION
23.
|
Governing
Law.
|
53
|
SECTION
24.
|
Intention
of the Parties.
|
53
|
SECTION
25.
|
Successors
and Assigns.
|
54
|
SECTION
26.
|
Waivers.
|
54
|
SECTION
27.
|
Exhibits.
|
54
|
SECTION
28.
|
Nonsolicitation.
|
54
|
SECTION
29.
|
General
Interpretive Principles.
|
54
|
SECTION
30.
|
Reproduction
of Documents.
|
55
|
SECTION
31.
|
Further
Agreements.
|
55
|
SECTION
32.
|
Third-Party
Beneficiary.
|
56
|
SECTION
33.
|
Entire
Agreement.
|
56
|
SECTION
34.
|
Confidentiality.
|
56
|
ii
EXHIBITS
EXHIBIT
1
|
SELLER’S
OFFICER’S CERTIFICATE
|
EXHIBIT
2
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
EXHIBIT
3
|
SECURITY
RELEASE CERTIFICATION
|
EXHIBIT
4
|
ASSIGNMENT
AND CONVEYANCE
|
EXHIBIT
5
|
CONTENTS
OF EACH MORTGAGE FILE
|
EXHIBIT
6
|
CUSTODIAL
AGREEMENT
|
EXHIBIT
7
|
FORM
OF CUSTODIAL ACCOUNT LETTER
AGREEMENT
|
EXHIBIT
8
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
EXHIBIT
9
|
SERVICING
ADDENDUM
|
EXHIBIT
10
|
FORM
OF ASSIGNMENT AND RECOGNITION
AGREEMENT
|
EXHIBIT
11
|
RESERVED
|
EXHIBIT
12
|
RESERVED
|
EXHIBIT
13
|
MORTGAGE
LOAN DOCUMENTS
|
EXHIBIT
14
|
UNDERWRITING
GUIDELINES OF THE SELLER
|
EXHIBIT
15
|
RESERVED
|
EXHIBIT
16
|
SUMMARY
OF APPLICABLE REGULATION AB
REQUIREMENTS
|
EXHIBIT
17
|
RESERVED
|
SCHEDULE
I
|
MORTGAGE
LOAN SCHEDULE
|
SCHEDULE
II
|
PREPAYMENT
CHARGE SCHEDULE
|
iii
MASTER
MORTGAGE LOAN PURCHASE AND INTERIM SERVICING AGREEMENT
This
is a
MASTER MORTGAGE LOAN PURCHASE AND INTERIM SERVICING AGREEMENT (the “Agreement”),
dated as of December 15, 2006, by and between HSBC Bank USA, National
Association, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the
“Initial Purchaser”, and the Initial Purchaser or the Person, if any, to which
the Initial Purchaser has assigned its rights and obligations hereunder as
Purchaser with respect to a Mortgage Loan, and each of their respective
successors and assigns, the “Purchaser”), Decision One Mortgage Company, LLC,
having an office at 0000 XXXX Xxx, Xxxx Xxxx, Xxxxx Xxxxxxxx 00000 (the “Seller”
and “Servicer”).
W
I T N E
S S E T H :
WHEREAS,
the Seller desires to sell, from time to time, to the Initial Purchaser, and
the
Initial Purchaser desires to purchase, from time to time, from the Seller,
certain conventional, fixed and adjustable rate residential first and second
lien mortgage loans, including the right to any Prepayment Charges payable
by
the related Mortgagors as described herein, (the “Mortgage Loans”) as described
herein on a servicing-released basis, and which shall be delivered in groups
of
whole loans on various dates as provided herein and in the related Confirmation
(each, a “Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first or second lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule for the related
Mortgage Loan Package, which is to be annexed hereto on each Closing Date as
Schedule I;
WHEREAS,
the Initial Purchaser, the Seller and the Servicer wish to prescribe the manner
of the conveyance, interim servicing and control of the Mortgage Loans;
and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer in a whole loan or participation format or a public or
private mortgage-backed securities transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1.
|
Definitions.
|
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, which are in accordance with the
terms of the Mortgage Loan Documents and all applicable federal, state and
local
legal and regulatory requirements.
1
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on such Adjustable Rate
Mortgage Loan is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement:
This
Master Mortgage Loan Purchase and Interim Servicing Agreement including all
exhibits, schedules, amendments and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by
an
appraiser who met the minimum requirements of FNMA and FHLMC and the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989.,
and
(ii) the purchase price paid for the related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage Loan, provided, however, in the case of a
Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator of such
Refinanced Mortgage Loan at the time of origination of such Refinanced Mortgage
Loan by an appraiser who met the minimum requirements of FNMA and FHLMC and
the
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Assignment
and Conveyance:
An
assignment and conveyance of the Mortgage Loans purchased on a Closing Date
in
the form annexed hereto as Exhibit 4.
Assignment
of Mortgage:
With
respect to each Mortgage Loan which is not a MERS Loan, an individual 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 give record notice of the sale of the Mortgage to the
Purchaser.
Balloon
Mortgage Loan:
A
Mortgage Loan that provided on the date of origination for an amortization
schedule extending beyond its maturity date.
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banking and savings and
loan
institutions in the State of North Carolina or the State of New York are
authorized or obligated by law or executive order to be closed.
Cash-Out
Refinancing:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the principal
balance of any existing first mortgage on the related Mortgaged Property and
related closing costs, and were used to pay any such existing first mortgage,
related closing costs and subordinate mortgages on the related Mortgaged
Property.
Closing
Date:
The
date or dates on which the Initial Purchaser from time to time shall purchase
and the Seller from time to time shall sell to the Initial Purchaser, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the
related Mortgage Loan Package.
2
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to
Section 9.
Code:
The
Internal Revenue Code of 1986, or any successor statute thereto.
Combined
Loan-to-Value Ratio or CLTV: With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan and any other
mortgage loan which is secured by a lien on the related Mortgaged Property
to
the Appraised Value of the Mortgaged Property.
Commission
or SEC:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property by exercise of the power of condemnation or the right of
eminent domain.
Confirmation:
With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
letter agreement among the Initial Purchaser, the Servicer and the Seller
(including any exhibits, schedules and attachments thereto), setting forth
the
terms and conditions of such transaction and describing the Mortgage Loans
to be
purchased by the Initial Purchaser on such Closing Date. A Confirmation may
relate to more than one Mortgage Loan Package to be purchased on one or more
Closing Dates hereunder.
Convertible
Mortgage Loan:
A
Mortgage Loan that by its terms and subject to certain conditions contained
in
the related Mortgage or Mortgage Note allows the Mortgagor to convert the
adjustable Mortgage Interest Rate on such Mortgage Loan to a fixed Mortgage
Interest Rate.
Custodial
Account:
The
separate account or accounts, each of which shall be an Eligible Account,
created and maintained pursuant to this Agreement, which shall be entitled
“[SELLER], as servicer, in trust for the Purchaser and various Mortgagors, Fixed
and Adjustable Rate Mortgage Loans”, established at a financial institution
acceptable to the Purchaser. Each Custodial Account shall be an Eligible
Account.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, annexed
hereto as Exhibit 6.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement, as
therein provided.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Pass-Through Transfer.
3
Determination
Date:
With
respect to each Distribution Date, the fifteenth (15th) day of the calendar
month in which such Distribution Date occurs or, if such fifteenth (15th) day
is
not a Business Day, the Business Day immediately preceding such fifteenth (15th)
day.
Distribution
Date:
The
eighteenth (18th) day of each month, commencing on the eighteenth day of the
month next following the month in which the related Cut-off Date occurs, or
if
such eighteenth (18th) day is not a Business Day, the first Business Day
immediately preceding such eighteenth (18th) day.
Due
Date:
With
respect to each Mortgage Loan, the day of the calendar month on which each
Monthly Payment is due on such Mortgage Loan (including the Balloon Payment
with
respect to a Balloon Mortgage Loan), exclusive of any days of
grace.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1 by S&P or
Prime-1 by Xxxxx’x (or a comparable rating if another rating agency is specified
by the Initial Purchaser by written notice to the Seller and Servicer) at the
time any amounts are held on deposit therein, (ii) an account or accounts the
deposits in which are fully insured by the FDIC or (iii) a trust account or
accounts maintained with a federal or state chartered depository institution
or
trust company acting in its fiduciary capacity. Eligible Accounts may bear
interest.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “[SELLER], as servicer, in trust for the
Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage Loans,”
established at a financial institution acceptable to the Purchaser. Each Escrow
Account shall be an Eligible Account.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water charges, sewer
rents, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the Mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
Event
of Default:
Any one
of the events enumerated in Subsection 14.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
Xxxxxxx
Mac or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to this
Agreement), a determination made by the Servicer that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Servicer, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain records, prepared
by
a servicing officer of the Servicer, of each Final Recovery
Determination.
4
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Interest Rate set forth in
the
Mortgage Note is fixed for the term of such Mortgage Loan.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
FNMA:
Xxxxxx
Xxx or any successor thereto.
FNMA
Guide(s):
The Xxxxxx Mae Selling Guide and the Xxxxxx Xxx Servicing Guide and all
amendments or additions thereto.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Mortgage Loan Schedule that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage Loan.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Closing Date:
The
Closing Date on which the Initial Purchaser purchases and the Seller sells
the
first Mortgage Loan Package hereunder.
Initial
Purchaser:
HSBC
Bank USA, National Association, or any successor or assign.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interim
Servicing Period:
With
respect to any Mortgage Loan, the period commencing on the related Closing
Date
and ending on the thirtieth day following the Closing Date unless otherwise
specified in the related Confirmation; provided, however that the Interim
Servicing Period may be extended for one (1) additional period of thirty days
upon mutual agreement of the Seller and Purchaser.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted Mortgage Loan through trustee’s
sale, foreclosure sale or otherwise, other than amounts received following
the
acquisition of REO Property.
5
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan, to the Appraised
Value of the Mortgaged Property.
Master
Servicer:
With respect to any Pass-Through Transfer, the “master servicer”, if any,
specified by the Purchaser and identified in the related transaction
documents.
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 and 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 corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS on the
MERS® System.
Minimum
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 and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan where MERS acts as the mortgagee of record of such Mortgage Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled combined payment of principal and
interest (including any Balloon Payment) payable by a Mortgagor under the
related Mortgage Note on each Due Date.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first or second lien
on
Mortgaged Property securing the Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit 5 annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement or the related Confirmation.
Mortgage
Interest Rate:
With
respect to each Fixed Rate Mortgage Loan, the fixed annual rate of interest
provided for in the related Mortgage Note and, with respect to each Adjustable
Rate Mortgage Loan, the annual rate that interest accrues on such Adjustable
Rate Mortgage Loan from time to time in accordance with the provisions of the
related Mortgage Note.
6
Mortgage
Loan:
Each
first or second lien, residential mortgage loan, sold, assigned and transferred
to the Purchaser pursuant to this Agreement and the related Confirmation and
identified on the Mortgage Loan Schedule annexed to this Agreement on such
Closing Date, which Mortgage Loan includes without limitation the Mortgage
File,
the Monthly Payments, Principal Prepayments (including any Prepayment Charges),
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
proceeds, and all other rights, benefits, proceeds and obligations arising
from
or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Exhibit 13 hereto pertaining to any Mortgage
Loan.
Mortgage
Loan Package:
The
Mortgage Loans listed on a Mortgage Loan Schedule, delivered to the Custodian
and the Initial Purchaser at least five (5) Business Days prior to the related
Closing Date and attached to the related Assignment and Conveyance on the
related Closing Date.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans to be
annexed to the related Assignment and Conveyance on the related Closing Date
for
the Mortgage Loan Package delivered on such Closing Date in electronic form,
such schedule setting forth the following information with respect to each
Mortgage Loan in the Mortgage Loan Package: (1) the Seller's Mortgage Loan
identifying number; (2) the Mortgagor's first and last name; (3) the street
address of the Mortgaged Property including the state and zip code; (4) a code
indicating whether the Mortgaged Property is owner-occupied; (5) the type of
Residential Dwelling constituting the Mortgaged Property; (6) the original
months to maturity; (7) the original date of the Mortgage Loan and the remaining
months to maturity from the Cut-off Date, based on the original amortization
schedule; (8) the Loan-to-Value Ratio or Combined Loan-to-Value Ratio at
origination; (9) the Mortgage Interest Rate in effect immediately following
the
Cut-off Date; (10) the date on which the first Monthly Payment was due on the
Mortgage Loan; (11) the stated maturity date; (12) the amount of the Monthly
Payment at origination; (13) the amount of the Monthly Payment as of the Cut-off
Date; (14) the last Due Date on which a Monthly Payment was actually applied
to
the unpaid Stated Principal Balance; (15) the original principal amount of
the
Mortgage Loan and with respect to second liens the related first lien on the
Mortgaged Property; (16) the Stated Principal Balance of the Mortgage Loan
and
with respect to second liens the principal balance of the related first lien
on
the Mortgaged Property as of the close of business on the Cut-off Date; (17)
with respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date;
(18) with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(19)
a code indicating the purpose of the loan (i.e., purchase financing, Rate/Term
Refinancing, Cash-Out Refinancing); (20) with respect to each Adjustable Rate
Mortgage Loan, the Maximum Mortgage Interest Rate under the terms of the
Mortgage Note; (21) with respect to each Adjustable Rate Mortgage Loan, the
Minimum Mortgage Interest Rate under the terms of the Mortgage Note; (22) the
Mortgage Interest Rate at origination; (23) with respect to each Adjustable
Rate
Mortgage Loan, the Periodic Rate Cap; (24) with respect to each Adjustable
Rate
Mortgage Loan, the first Adjustment Date immediately following the Cut-off
Date;
(25) with respect to each Adjustable Rate Mortgage Loan, the Index; (26) the
date on which the first Monthly Payment was due on the Mortgage Loan and, if
such date is not consistent with the Due Date currently in effect, such Due
Date; (27) 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); (28) a code
indicating whether the Mortgage Loan is an Adjustable Rate Mortgage Loan or
a
Fixed Rate Mortgage Loan; (29) the Appraised Value of the Mortgaged Property;
(30) the sale price of the Mortgaged Property, if applicable; (31) a code
indicating whether the Mortgage Loan is subject to a Prepayment Charge or
penalty; (32) the amount and the term of any Prepayment Charge or penalty;
(33)
with respect to each MERS Mortgage Loan, the related MIN; (34) a code indicating
if the Mortgage Loan is a Negative Amortization Mortgage Loan; (35) a code
indicating if the Mortgage Loan is an interest-only Mortgage Loan and, if so,
the term of the interest-only period of such Mortgage Loan; (36) a code
indicating whether the Mortgage Loan is a first or second lien; and (37) a
code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan and, if so,
the
term of the Balloon Mortgage Loan and the amount of the Balloon Payment
scheduled to be due at maturity assuming no Principal Prepayments; (38) a code
indicating whether a borrower is a non-resident alien; (39) a code indicating
whether a borrower is in bankruptcy; and (40) the points and fees charged in
connection with the origination of such Mortgage Loan. With respect to the
Mortgage Loan Package in the aggregate, the Mortgage Loan Schedule shall set
forth the following information, as of the related Cut-off Date: (1) the number
of Mortgage Loans; (2) the current principal balance of the Mortgage Loans;
(3)
the weighted average Mortgage Interest Rate of the Mortgage Loans; and (4)
the
weighted average maturity of the Mortgage Loans. Schedule
I
hereto
shall be supplemented as of each Closing Date to reflect the addition of the
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
7
Mortgage
Note:
The
original executed note or other evidence of the Mortgage Loan indebtedness
of a
Mortgagor.
Mortgaged
Property:
The
Mortgagor’s real property securing repayment of a related Mortgage Note,
consisting of a fee simple interest in a single parcel of real property improved
by a Residential Dwelling.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or mortgagor named in the related Mortgage and such grantor’s or mortgagor’s
successor’s in title to the Mortgaged Property.
Negative
Amortization:
With
respect to each Negative Amortization Mortgage Loan, that portion of interest
accrued at the Mortgage Interest Rate in any month that exceeds the Monthly
Payment on the related Mortgage Loan for such month and which, pursuant to
the
terms of the Mortgage Note, is added to the principal balance of the Mortgage
Loan.
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that is identified on the Mortgage Loan Schedule as a Mortgage
Loan that may be subject to Negative Amortization.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Person on
behalf of whom such certificate is being delivered.
8
Opinion
of Counsel:
A
written opinion of counsel, who may be salaried counsel for the Person on behalf
of whom the opinion is being given, reasonably acceptable to each Person to
whom
such opinion is addressed.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or transfer of some or all of the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage Loans.
Payment
Adjustment Date:
With
respect to each Negative Amortization Mortgage Loan, the date on which Monthly
Payments shall be adjusted. A Payment Adjustment Date with respect to a Negative
Amortization Mortgage Loan shall occur on each anniversary date of the first
payment date for the Mortgage Loan.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase (without regard to the Maximum Mortgage Interest Rate) or
decrease (without regard to the Minimum Mortgage Interest Rate) on such
Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to
such Adjustment Date.
Person:
An
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a Principal Prepayment on such Mortgage Loan pursuant to
the
terms of the related Mortgage Note.
Prepayment
Charge Schedule:
The
schedule to be annexed hereto as Schedule II indicating whether a Mortgage
Loan
is subject to a Prepayment Charge and if so, the amount and term of such
Prepayment Charge.
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 Charge, which is
not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Initial Purchaser to the Seller
pursuant to the related Confirmation in exchange for the Mortgage Loans
purchased on such Closing Date as calculated as provided in
Section 4.
Purchaser:
The
Initial Purchaser or the Person, if any, to which the Initial Purchaser has
assigned its rights and obligations thereunder as Purchaser with respect to
a
Mortgage Loan, and each of their respective successors and assigns.
9
Qualified
Correspondent:
Any Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Property is located, duly authorized and licensed in such states
to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by prudent mortgage lending institutions
in
the secondary mortgage market, whose claims paying ability is rated in the
two
highest rating categories by Best’s Key Rating Guide with respect to hazard and
flood insurance.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of the Stated Principal Balance of the Deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
Mortgage Interest Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Interest 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) have the same Due Date as the
Due
Date on the Deleted Mortgage Loan, (v) have a Loan-to-Value Ratio, and in the
case of a second lien Mortgage Loan, a Combined Loan-to-Value Ratio as of the
date of substitution equal to or lower than the Loan-to-Value Ratio or Combined
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (vi) conform
to each representation and warranty set forth in Subsection 7.02 of this
Agreement, and (vii) be the same type of mortgage loan (i.e. fixed or adjustable
rate with the same Gross Margin and Index as the Deleted Mortgage Loan). In
the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the Mortgage Interest Rates
described in clause (ii) hereof shall be determined on the basis of weighted
average Mortgage Interest Rates and shall be satisfied as to each such mortgage
loan, the terms described in clause (iii) shall be determined on the basis
of
weighted average remaining terms to maturity, the Loan-to-Value Ratios, and
in
the case of second lien Mortgage Loans the Combined Loan-to-Value Ratios
described in clause (v) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (vii) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
10
Rate/Term
Refinancing:
A
Refinanced Mortgage Loan, the proceeds of which are not in excess of the
existing first mortgage loan on the related Mortgaged Property and related
closing costs, and were used exclusively to satisfy the then existing first
mortgage loan of the Mortgagor on the related Mortgaged Property and to pay
related closing costs.
Reconstitution:
Any Pass-Through Transfer or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Seller, the Servicer 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 or a Pass-Through Transfer as provided in
Section 12.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Pass-Through Transfer pursuant to Section 12
hereof.
Record
Date:
With
respect to each Distribution Date, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time
REMIC:
A
Areal
estate mortgage investment conduit within the meaning of Section 860D of
the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMICs, which appear in
Sections 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “[SELLER], in trust for the Purchaser, as of
[date of acquisition of title], Fixed and Adjustable Rate Mortgage
Loans”.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Property:
A
Mortgaged Property acquired as a result of the liquidation of a Mortgage
Loan.
11
Repurchase
Price:
The
Repurchase Price for any Mortgage Loan that is required to be repurchased
pursuant to Section 7.04 shall be equal to the sum of (i) the product of the
Stated Principal Balance of such Mortgage Loan times the greater of (x) the
Purchase Price percentage as stated in the related Confirmation and (y) 100%,
plus (ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from and including the last Due Date through which interest has been paid
by or on behalf of the Mortgagor to the day immediately prior to the date of
repurchase (unless the Mortgage Loan has been the subject of a Pass-Through
Transfer, in which case the measurement date for accrual of interest on such
Stated Principal Balance shall be the first day of the month following the
date
of repurchase), less amounts received in respect of such repurchased Mortgage
Loan which are being held in the Custodial Account for distribution in
connection with such Mortgage Loan, plus (iii) any unreimbursed servicing
advances and monthly advances (including nonrecoverable monthly advances) and
any unpaid servicing fees allocable to such Mortgage Loan paid by any party
other than the Servicer, plus (iv) reasonable costs and expenses incurred by
the
Purchaser, the servicer, master servicer or any trustee in respect of the breach
or defect giving rise to the repurchase obligation including, without
limitation, reasonable costs and damages incurred by any such party in
connection with any violation by any such Mortgage Loan of any predatory or
abusive lending law.
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached two-
to
four-family dwelling, (iii) a one-family dwelling unit in a FNMA eligible
condominium project, or (iv) a detached one-family dwelling in a planned unit
development, none of which is a co-operative, mobile or manufactured
home.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any transaction involving either (1) a sale or other transfer of some or all
of
the Mortgage Loans directly or indirectly to an issuing entity in connection
with an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicing
Addendum:
The
terms and conditions attached hereto as Exhibit 9, which will govern the
servicing of the Mortgage Loans, by Servicer during the Interim Servicing
Period.
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses incurred
by the Servicer in the performance of its servicing obligations, including,
but
not limited to, the cost of (i) preservation, restoration and repair of a
Mortgaged Property, (ii) any enforcement or judicial proceedings with respect
to
a Mortgage Loan, including foreclosure actions and (iii) the management and
liquidation of REO Property.
Servicing
Fee:
Except
as set forth in the related Confirmation, with respect to each Mortgage Loan,
an
amount equal to zero dollars ($0.00) per calendar month, payable monthly, in
arrears. The obligation of the Purchaser to pay the Servicing Fee is limited
to,
and payable solely from, the interest portion (including recoveries with respect
to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Subsection 11.05) of related Monthly Payment collected by the
Servicer, or as otherwise provided under Subsection 11.05. If the Interim
Servicing Period includes any partial month, the Servicing Fee for such month
shall be pro rated at a per diem rate based upon a 30-day month.
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Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting of
originals of all documents in the Mortgage File, which are not delivered to
the
Purchaser, or the Custodian and copies of the Mortgage Loan Documents set forth
in Exhibit 13 hereto.
Servicing
Transfer Costs:
All
reasonable costs and expenses incurred by the Purchaser in connection with
the
transfer of servicing from Servicer, including, without limitation, any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Purchaser (or any successor to Seller appointed
pursuant to this Agreement) to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Purchaser (or any successor to Seller
appointed pursuant to this Agreement) to service the Mortgage Loans properly
and
effectively.
Servicing
Transfer Date:
With
respect to any Mortgage Loan, the date on which the Servicer transfers the
servicing of a Mortgage Loan to the Initial Purchaser or its designee, which
date shall be the day immediately following the expiration of the related
Interim Servicing Period.
S&P:
Standard & Poor’s Ratings Group or its successor in interest.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
the Mortgage Loan as of the Cut-off Date after giving effect to payments of
principal received on or before such date, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal, plus (iii) the cumulative
amount of any Negative Amortization.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Tax
Service Contract:
A
transferable contract maintained for the Mortgaged Property with a tax service
provider for the purpose of obtaining current information from local taxing
authorities relating to such Mortgaged Property.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Underwriting
Guidelines:
The
Seller’s written underwriting guidelines attached hereto as Exhibit 14 as in
effect with respect to the Mortgage Loans purchased by Initial Purchaser on
the
Initial Closing Date, as may be amended, supplemented or modified from time
to
time thereafter with prior written notice to the Initial Purchaser.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a Pass-Through
Transfer.
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SECTION
2.
|
Agreement
to Purchase.
|
The
Seller agrees to sell, and the Purchaser agrees to purchase, from time-to-time,
Mortgage Loans having an aggregate principal balance on the related Cut-off
Date
in an amount as set forth in the related Confirmation, or in such other amount
as agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on the related
Closing Date.
SECTION
3.
|
Mortgage
Loan Schedules.
|
The
Seller shall deliver the Mortgage Loan Schedule for a Mortgage Loan Package
to
be purchased on a particular Closing Date to the Purchaser at least five (5)
Business Days prior to the related Closing Date.
SECTION
4.
|
Purchase
Price.
|
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the percentage of par as stated in the related Confirmation
(subject to adjustment as provided therein), multiplied by its Stated Principal
Balance as of the related Cut-off Date. If so provided in the related
Confirmation, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Initial Purchaser shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Mortgage Loan as of the related Cut-off Date at its Mortgage Interest
Rate, net of the Servicing Fee, from the related Cut-off Date through the day
prior to the related Closing Date, both inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Mortgage
Loan purchased, (1) all recoveries of principal collected after the Cut-off
Date, (2) all payments of interest on the Mortgage Loans net of the Servicing
Fee during the Interim Servicing Period; and (3) all Prepayment Charges on
the
Mortgage Loans collected on or after the Cut-off Date.
SECTION
5.
|
Examination
of Mortgage Files.
|
In
addition to the rights granted to the Initial Purchaser under the related
Confirmation to underwrite the Mortgage Loans and review the Mortgage Files
prior to the Closing Date, prior to the related Closing Date, the Seller, or
Servicer, as applicable, shall, at the Purchaser’s option (a) deliver to the
Custodian in escrow, for examination with respect to each Mortgage Loan to
be
purchased on such Closing Date, the related Mortgage File, including the
Assignment of Mortgage, pertaining to each Mortgage Loan, or (b) make the
related Mortgage File available to the Initial Purchaser for examination at
the
Seller’s offices or such other location as shall otherwise be agreed upon by the
Initial Purchaser and the Seller. Such examination may be made by the Initial
Purchaser or its designee at any reasonable time before or after the related
Closing Date. If the Initial Purchaser makes such examination prior to the
related Closing Date and identifies any Mortgage Loans that do not conform
to
the terms of the related Confirmation, the terms of this Agreement or the
Underwriting Guidelines, such Mortgage Loans may, at the Initial Purchaser’s
option, be rejected for purchase by the Initial Purchaser. If not purchased
by
the Initial Purchaser, such Mortgage Loans shall be deleted from the related
Mortgage Loan Schedule. The Initial Purchaser may, at its option and without
notice to the Seller, purchase all or part of any Mortgage Loan Package without
conducting any partial or complete examination. The fact that the Initial
Purchaser has conducted or has determined not to conduct any partial or complete
examination of the Mortgage Files shall not affect the Initial Purchaser’s (or
any of its successors’) rights to demand repurchase or other relief or remedy
provided for in this Agreement.
14
SECTION
6.
|
Conveyance
from Seller to Initial Purchaser.
|
Subsection
6.01.
|
Conveyance
of Mortgage Loans; Possession of Servicing Files.
|
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Initial Purchaser an Assignment and Conveyance with respect
to
the related Mortgage Loan Package in the form attached hereto as Exhibit 4.
The
Servicing File retained by the Servicer with respect to each Mortgage Loan
pursuant to this Agreement shall be appropriately identified in the Servicer’s
computer system to reflect clearly the sale of such related Mortgage Loan to
the
Purchaser. The Purchaser shall be entitled to receive all Prepayment Charges
required to be paid by a Mortgagor under the terms of any Mortgage Loan. The
Servicer shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Subsection 7.03 or 7.04.
Subsection
6.02.
|
Books
and Records.
|
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, the Servicer, the Purchaser, the
Custodian or one or more designees of the Initial Purchaser, as the Initial
Purchaser shall designate. Notwithstanding the foregoing, beneficial ownership
of each Mortgage and the related Mortgage Note shall be vested solely in the
Purchaser or the appropriate designee of the Purchaser, as the case may be.
All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received by the Seller after the related Cut-off Date on or in connection
with a Mortgage Loan as provided in Section 4 shall be vested in the
Purchaser or one or more designees of the Purchaser; provided, however, that
all
such funds received on or in connection with a Mortgage Loan as provided in
Section 4 shall be received and held by the Seller in trust for the benefit
of the Purchaser or the assignee of the Purchaser, as the case may be, as the
owner of the Mortgage Loans pursuant to the terms of this
Agreement.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by the Seller
and not a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a debt or other obligation of the Seller. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on the Seller’s business records, tax
returns and financial statements.
Subsection
6.03.
|
Delivery
of Mortgage Loan Documents.
|
The
Seller or Servicer, as applicable, shall from time to time in connection with
each Closing Date, at least five (5) Business Days prior to such Closing Date,
deliver and release to the Custodian those Mortgage Loan Documents set forth
on
Exhibit 13 hereto with respect to each Mortgage Loan to be purchased and sold
on
the related Closing Date and set forth on the related Mortgage Loan Schedule
delivered with such Mortgage Loan Documents.
15
The
Servicer shall provide to each of the Purchaser and the Custodian a notice
containing a list of authorized servicing officers (each, an “Authorized
Representative”) for the purpose of giving and receiving notices, requests and
instructions and delivering certificates and documents in connection with this
Agreement. Such notice shall contain the specimen signature for each Authorized
Representative. From time to time, the Servicer may, by delivering to the others
a revised notice, change the information previously given pursuant to this
Section, but each of the parties hereto shall be entitled to rely conclusively
on the then current notice until receipt of a superseding notice.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to this Agreement for the related Closing Date, as
evidenced by the Trust Receipt and Initial Certification of the Custodian in
the
form annexed to the Custodial Agreement. The Servicer shall be responsible
for
maintaining the Custodial Agreement during the Interim Servicing Period. The
fees and expenses of the Custodian during such period shall be paid by the
Seller.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks 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 ninety
(90) days of its submission for recordation.
Subsection
6.04
|
Quality
Control Procedures.
|
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of the Seller’s loan
production and the servicing activities of the Seller. The program is to ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Standards and the Underwriting Guidelines; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
SECTION
7.
|
Representations,
Warranties and Covenants of the Seller: Remedies for
Breach.
|
Subsection
7.01.
|
Representations
and Warranties Respecting the Seller.
|
(a) The
Seller represents, warrants and covenants to the Initial Purchaser and to any
subsequent Purchaser as of the Initial Closing Date and each subsequent Closing
Date or as of such date specifically provided herein or in the applicable
Assignment and Conveyance:
16
(i) The
Seller is a limited liability company formed, validly existing and in good
standing under the laws of North Carolina. The Seller has all licenses necessary
to carry out its business as now being conducted, and is licensed and qualified
to transact business in and is in good standing under the laws of each state
in
which any Mortgaged Property is located or is otherwise exempt under applicable
law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for
such
licensing or qualification has been made upon the Seller by any such state,
and
in any event the Seller is in compliance with the laws of any such state to
the
extent necessary to ensure the enforceability of each Mortgage Loan and the
interim servicing of the Mortgage Loans in accordance with the terms of this
Agreement. No licenses or approvals obtained by the Seller have been suspended
or revoked by any court, administrative agency, arbitrator or governmental
body
and no proceedings are pending which might result in such suspension or
revocation;
(ii) The
Seller has the full power and authority to hold each Mortgage Loan, to sell
each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
by-laws or limited liability company agreement or constitute a default under
or
result in a breach or acceleration of, any material contract, agreement or
other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller is a HUD approved mortgagee pursuant to Section 203 of the National
Housing Act. No event has occurred, including but not limited to a change in
insurance coverage, which would make the Seller unable to comply with HUD
eligibility requirements or which would require notification to
HUD;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
17
(vii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to this
Agreement, have been delivered to the Custodian all in compliance with the
specific requirements of this Agreement. With respect to each Mortgage Loan,
the
Seller is in possession of a complete Mortgage File in compliance with Exhibit
5, except for such documents as have been delivered to the
Custodian;
(viii) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller shall
retain such record title to each Mortgage, each related Mortgage Note and the
related Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof and only for the purpose of servicing and/or supervising the
servicing of each Mortgage Loan;
(ix) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative agency or other tribunal (A) that might prohibit its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or the validity or enforceability of,
this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the related Closing Date;
(xi) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xii) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of the Seller, and the Seller has determined that, and will treat,
the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. The Seller shall maintain a complete set of
books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of each Mortgage Loan by the Purchaser;
(xiii) The
consideration received by the Seller upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
18
(xiv) The
Seller is solvent and will not be rendered insolvent by the consummation of
the
transactions contemplated hereby. The Seller is not transferring any Mortgage
Loan with any intent to hinder, delay or defraud any of its
creditors;
(xv) Reserved;
(xvi) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xvii) The
Seller is a member of MERS, will comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS and is current in payment of all fees and
assessments imposed by MERS; and
(xviii) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans.
Subsection
7.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
The
Seller hereby represents and warrants to the Initial Purchaser and to any
subsequent Purchaser that, as to each Mortgage Loan, as of the related Closing
Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule and the mortgage
loan data delivered to the Purchaser is complete, true and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct; provided, however,
that in the event of any conflict between the terms of any Confirmation and
this
Agreement, the terms of this Agreement shall control;
(iii) All
payments required to be made up to the close of business on the Servicing
Transfer Date for such Mortgage Loan under the terms of the Mortgage Note have
been made; the Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Note or Mortgage; no Mortgage Loan is thirty (30)
or
more days delinquent as of the Servicing Transfer Date and there has been no
delinquency, exclusive of any period of grace, in any payment by the Mortgagor
thereunder since the origination of the Mortgage Loan;
(iv) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
19
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the title
insurer, to the extent required by the related policy, and is reflected on
the
related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, except in connection with an assumption agreement approved by the
title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected in
the
related Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto. Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(vii) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
acceptable to prudent mortgage lending institutions in the secondary mortgage
market against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where the Mortgaged Property is located, pursuant
to insurance polices providing coverage in an amount not less than the greatest
of (i) 100% of the replacement cost of all improvements to the Mortgaged
Property, (ii) either (A) the outstanding principal balance of the Mortgage
Loan
with respect to each first lien Mortgage Loan or (B) with respect to each second
lien Mortgage Loan, the sum of the outstanding principal balance of the related
first lien mortgage loan and the outstanding principal balance of the second
lien Mortgage Loan, (iii) the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property, and consistent
with the amount that would have been required as of the date of origination
in
accordance with the Underwriting Guidelines, or (iv) the amount necessary to
fully compensate for any damage or loss to the improvements that are a part
of
such property on a replacement cost basis. All such insurance policies contain
a
standard mortgagee clause naming the Servicer, its successors and assigns as
mortgagee and all premiums thereon have been paid. If the Mortgaged Property
is
in an area identified on a Flood Hazard Map or Flood Insurance Rate Map issued
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 and acceptable to prudent mortgage lending
institutions in the secondary mortgage market. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor;
20
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, fair lending, consumer credit protection, equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of mortgage loans of a type similar to the Mortgage
Loans and applicable to any prepayment penalty associated with the Mortgage
Loans at origination have been complied with;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x) The
Mortgage (including any Negative Amortization which may arise thereunder) is
a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of current
real property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording being 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 which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c) with
respect to each Mortgage Loan which is indicated by the Seller to be a second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first lien
on
the Mortgaged Property; and (d) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, existing and enforceable first
or
second lien and first or second priority security interest (in each case, as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the Purchaser. The
Mortgaged Property was not, as of the date of origination of the Mortgage Loan,
subject to a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms;
(xii) 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 Mortgagor is a natural person;
21
(xiii) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(xv) 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) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy (which, in the case of an Adjustable Rate Mortgage Loan
has an adjustable rate mortgage endorsement in the form of ALTA 6.0 or 6.1)
acceptable to prudent mortgage lending institutions in the secondary mortgage
market, issued by a title insurer acceptable to prudent mortgage lending
institutions in the secondary mortgage market and qualified to do business
in
the jurisdiction where the Mortgaged Property is located, insuring (subject
to
the exceptions contained in (x)(a) and (b), and with respect to any second
lien
Mortgage Loan (c), above) the Seller, its successors and assigns as to the
first
or second priority lien (as indicated on the Mortgage Loan Schedule) of the
Mortgage in the original principal amount of the Mortgage Loan (including,
if
the Mortgage Loan provides for Negative Amortization, the maximum amount of
Negative Amortization in accordance with the Mortgage) and, with respect to
any
Adjustable Rate Mortgage Loan, against any loss by reason of the invalidity
or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment in the Mortgage Interest Rate and Monthly Payment
and
Negative Amortization provisions of the Mortgage Note. Additionally, such
lender's title insurance policy affirmatively insures ingress and egress to
and
from the Mortgaged Property, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Seller 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 full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
22
(xvii) 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 the Seller has not
waived any default, breach, violation or event of acceleration. With respect
to
each second lien Mortgage Loan (i) the first lien mortgage loan is in full
force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such first lien mortgage or the related mortgage note, (iii)
no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration thereunder, (iv) either (A) the first lien mortgage contains a
provision which allows or (B) applicable law requires, the mortgagee under
the
second lien Mortgage Loan to receive notice of, and affords such mortgagee
an
opportunity to cure any default by payment in full or otherwise under the first
lien mortgage, (v) the related first lien does not provide for or permit
negative amortization under such first lien Mortgage Loan, and (vi) either
no
consent for the Mortgage Loan is required by the holder of the first lien or
such consent has been obtained and is contained in the Mortgage
File;
(xviii) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such lien) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xix) All
improvements which were considered in determining the Appraised Value of the
related 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, subdivision law or ordinance;
(xx) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
(xxi) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan which is
not a
Negative Amortization Loan, the Mortgage Note is payable on the first day of
each month in Monthly Payments, which, in the case of a Fixed Rate Mortgage
Loan, are sufficient to fully amortize the original principal balance over
the
original term thereof (other than with respect to a Mortgage Loan identified
on
the related Mortgage Loan Schedule as an interest-only Mortgage Loan during
the
interest-only period or a Mortgage Loan which is identified on the related
Mortgage Loan Schedule as a Balloon Mortgage Loan) and to pay interest at the
related Mortgage Interest Rate, and, in the case of an Adjustable Rate Mortgage
Loan, are changed on each Adjustment Date, and in any case, are sufficient
to
fully amortize the original principal balance over the original term thereof
(other than with respect to a Mortgage Loan identified on the related Mortgage
Loan Schedule as an interest-only Mortgage Loan during the interest-only period
or a Mortgage Loan which is identified on the related Mortgage Loan Schedule
as
a Balloon Mortgage Loan) and to pay interest at the related Mortgage Interest
Rate. With respect to each Negative Amortization Mortgage Loan, the related
Mortgage Note requires a Monthly Payment which is sufficient during the period
following each Payment Adjustment Date, to fully amortize the outstanding
principal balance as of the first day of such period (including any Negative
Amortization) over the then remaining term of such Mortgage Note and to pay
interest at the related Mortgage Interest Rate; provided, that the Monthly
Payment shall not increase to an amount that exceeds 107.5% of the amount of
the
Monthly Payment that was due immediately prior to the Payment Adjustment Date;
provided, further, that the payment adjustment cap shall not be applicable
with
respect to the adjustment made to the Monthly Payment that occurs in a year
in
which the Mortgage Loan has been outstanding for a multiple of five (5) years
and in any such year the Monthly Payment shall be adjusted to fully amortize
the
Mortgage Loan over the remaining term. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period shall not exceed ten (10) years (or such other period
specified on the Mortgage Loan Schedule) 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. With
respect to each Balloon Mortgage Loan, the Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
over the original term thereof and to pay interest at the related Mortgage
Interest Rate and requires a final Monthly Payment substantially greater than
the preceding monthly payment which is sufficient to repay the remaining unpaid
principal balance of the Balloon Mortgage Loan at the Due Date of such monthly
payment. The Index for each Adjustable Rate Mortgage Loan is as set forth on
the
Mortgage Loan Schedule. No Mortgage Loan is a Convertible Mortgage Loan. No
Balloon Mortgage Loan has an original stated maturity of less than seven (7)
years;
23
(xxii) The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if any,
since origination, have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Seller and any predecessor servicer in accordance
with
the terms of the Mortgage Note and Accepted Servicing Practices. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller for any work on a Mortgaged Property
which
has not been completed;
(xxiii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
24
(xxiv) 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, (a) in the case of a Mortgage designated as a
deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure. The
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage. The
Mortgagor has not notified the Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act;
(xxv) The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated; and the Mortgage Note
and
Mortgage are on forms acceptable to FNMA and FHLMC;
(xxvi) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxvii) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of prudent mortgage lending institutions in the
secondary mortgage market, was on appraisal form 1004 or form 2055 with an
interior inspection and was made and signed, prior to the approval of the
Mortgage Loan application, by a qualified appraiser, duly appointed by the
Seller, who had no interest, direct or indirect in the Mortgaged Property or
in
any loan made on the security thereof, whose compensation is not affected by
the
approval or disapproval of the Mortgage Loan and who met the minimum
qualifications of prudent mortgage lending institutions in the secondary
mortgage market. Each appraisal of the Mortgage Loan was made in accordance
with
the relevant provisions of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(xxviii) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxix) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are (a)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid
by
any source other than the Mortgagor or (c) contains any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared appreciation
or other contingent interest feature;
25
(xxx) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxxi) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxii) The
Seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, or cause the Mortgage Loan to become delinquent or
adversely affect the value of the Mortgage Loan;
(xxxiii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 100%. No Mortgage
Loan is subject to a lender paid primary mortgage insurance policy;
(xxxiv)
The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(xxxv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxvi) The
Assignment of Mortgage is in recordable form, except for the name of the
assignee which is blank, and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(xxxvii) Any
principal advances made to the Mortgagor 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. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) 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 prudent mortgage lending institutions in
the
secondary mortgage market. The consolidated principal amount does not exceed
the
original principal amount of the Mortgage Loan plus any Negative
Amortization;
26
(xxxviii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of the Underwriting Guidelines;
(xxxix) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Seller;
(xl) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xli) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor the related Mortgagor, has received any
notice of any violation or potential violation of such law;
(xlii) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered by
a
Tax Service Contract which is assignable to the Purchaser or its designee;
provided however, that if the Seller fails to purchase such Tax Service
Contract, the Seller shall be required to reimburse the Purchaser for all costs
and expenses incurred by the Purchaser in connection with the purchase of any
such Tax Service Contract;
(xliii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by such
Flood Zone Service Contract, the Seller agrees to purchase such Flood Zone
Service Contract;
(xliv) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an “annual
percentage rate” or “total points and fees” (as each such term is defined under
HOEPA) payable by the Mortgagor that equal or exceed the applicable thresholds
defined under HOEPA (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b) a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for heightened regulatory scrutiny or assignee liability
to
holders of such mortgage loans, or (d) a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the current Standard & Poor’s
LEVELS® Glossary Revised, Appendix E);
(xlv) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan;
27
(xlvi) The
debt-to-income ratio of the related Mortgagor was not greater than 55% at the
origination of the related Mortgage Loan;
(xlvii) No
Mortgagor was required to purchase any credit insurance product (e.g., life,
mortgage, 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, mortgage, disability, accident, unemployment or health insurance product)
or debt cancellation agreement in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as part of
the
origination of, or as a condition to closing, such Mortgage Loan;
(xlviii) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xlix) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(l) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa, Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity, and in all other respects, complies
with all of the material requirements of any such applicable laws;
(li) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment Charge
is permissible, enforceable and collectable in accordance with its terms upon
the Mortgagor’s full and voluntary principal payment under applicable
law;
(lii) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Seller
has not received notification from a Mortgagor that a prepayment in full shall
be made after the Closing Date;
(liii) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property;
(liv) Each
Mortgage Loan is eligible for sale in the secondary market or for inclusion
in a
Pass-Through Transaction without unreasonable credit enhancement;
(lv) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Charge. With respect to any Mortgage Loan that contains
a provision permitting imposition of a premium upon a prepayment prior to
maturity: (a) the Mortgage Loan provides some benefit to the Mortgagor (e.g.
a
rate or fee reduction) in exchange for accepting such Prepayment Charge; (b)
the
Mortgagor was offered the option of obtaining a Mortgage Loan that did not
require payment of such a Prepayment Charge; (c) the Prepayment Charge was
adequately disclosed to the Mortgagor pursuant to applicable state and federal
law; (d) the duration of the Prepayment Charge shall not exceed three (3) years
from the date of the Mortgage Note; and (e) such Prepayment Charge shall not
be
imposed in any instance where the Mortgage Loan is accelerated or paid off
in
connection with the workout of a delinquent Mortgage or due to the Mortgagor’s
default, notwithstanding that the terms of the Mortgage Loan or state or federal
law might permit the imposition of such Prepayment Charge;
28
(lvi) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the Bank Secrecy Act, as amended
by
the USA Patriot Act of 2001 (collectively, the “Anti-Money Laundering Laws”);
the Seller has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the Mortgaged Property, and maintains, and will maintain, sufficient
information to identify and verify the identification of the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. No Mortgage Loan
is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or the regulations promulgated by the Office of Foreign Assets Control
of the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations nor
listed as a “specially designated national or blocked person” for purposes of
the OFAC Regulations;
(lvii) Reserved;
(lviii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely payments
on the Mortgage Loan;
(lix) Reserved;
(lx) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
related Borrower in accordance with applicable state and federal laws and
regulations. No related Borrower was charged “points and fees” (whether or not
financed) in an amount greater than (a) $1,000 or (b) 8% of the principal amount
of such loan, whichever is greater. For purposes of this representation, “points
and fees” (a) include origination, underwriting, broker and finder’s fees and
other charges that the lender imposed as a condition of making the loan, whether
they are paid to the lender or a third party, and (b) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title, hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges. All points, fees and charges (including finance
charges) and whether or not financed, assessed, collected or to be collected
in
connection with the origination and servicing of each Mortgage Loan were
disclosed in writing to the related Mortgagor in accordance with applicable
state and federal laws and regulations;
29
(lxi) Reserved;
(lxii) With
respect to any Mortgage Loan which is secured by manufactured housing, if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor upon
the
origination of the Mortgage Loan. With respect to any second lien Mortgage
Loan,
such lien is on a one- to four-family residence that is (or will be) the
principal residence of the Mortgagor upon the origination of the second lien
Mortgage Loan;
(lxiii) Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(lxiv) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia
Act”).
Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lxv) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(lxvi) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and (c)
has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(lxvii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
30
(lxviii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(lxix) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(lxx) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(lxxi) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(lxxii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(lxxiii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(lxxiv) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
(lxxv) With
respect to any Loan for which a mortgage loan application was submitted by
the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property in
the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per annum
has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(lxxvi) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either (1)
(a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the related
Mortgage Loan as of the fifteenth day of the month immediately preceding the
month in which the application for the extension of credit was received by
the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at any
time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest," as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with
the
laws of the Commonwealth of Massachusetts;
31
(lxxvii)
No Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(lxxviii) The
Mortgagee has not made or caused to be made any payment in the nature of an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxix) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxxx) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lxxxi) With
respect to each MOM Loan, Seller has not received any notice of liens or legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(lxxxii) With
respect to each Mortgage Loan, (i) if the related first lien provides for
negative amortization, the CLTV was calculated at the maximum principal balance
of such first lien that could result upon application of such negative
amortization feature, and (ii) either no consent for the Mortgage Loan is
required by the holder of the first lien or such consent has been obtained
and
is contained in the Mortgage File; and
(lxxxiii) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction.
(lxxxiv) No
Mortgage Loan is subject to mandatory arbitration;
(lxxxv) No
Mortgage Loan is secured by a lien on a “condo hotel;”
(lxxxvi) No
Mortgage Loan is secured by manufactured housing, cooperative housing,
commercial property or mixed use property; and
32
(lxxxvii) Each
Mortgage Loan secured by property located within the Xxxx County, Illinois
anti-predatory lending Pilot Program area (i.e., ZIP Codes 60620, 60621, 60623,
60628, 60629, 60632, 60636, 60638, 60643 and 60652) complies with the recording
requirements outlined in Illinois House Xxxx 4050 and Senate Xxxx 304 effective
September 1, 2006.
Subsection
7.03. Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or lack of examination of any Mortgage File. Upon
discovery by the Seller 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 value of a Mortgage Loan or the interests of the Purchaser in the
related Mortgage Loan in the case of a representation and warranty relating
to a
particular Mortgage Loan), or in the event that any Mortgagor fails to make
the
first payment due to the Purchaser following the Closing Date, the Seller shall
give prompt written notice to the Purchaser.
Within
60
days of the earlier of either discovery by the Seller, or notice to the Seller,
of any breach of a representation or warranty which materially and adversely
affects the value of a Mortgage Loan or the Mortgage Loans or the Purchaser’s
interest in a Mortgage Loan or the Mortgage Loans, the Seller shall use its
best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller 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 Subsection 7.01 and
such breach cannot be cured within 60 days of the earlier of either discovery
by
or notice to the Seller of such breach, all of the Mortgage Loans shall, at
the
Purchaser’s option, be repurchased by the Seller at the Repurchase Price. The
Seller shall, at the request of the Purchaser and assuming that Seller has
a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans; provided that such substitution
shall be effected not later than 120 days after the related Closing Date. If
the
Seller has no Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
foregoing provisions of this Subsection 7.03 shall occur on a date agreed
upon by the Seller and the Purchaser and shall be accomplished by deposit in
the
Custodial Account of the amount of the Repurchase Price for distribution to
the
Purchaser on the next scheduled Distribution Date. Notwithstanding anything
to
the contrary contained herein, it is understood by the parties hereto that
a
breach of the representations and warranties made in Subsections 7.02(viii),
(xliv), (xlvii), (lv), (lviii), (lx), (lxii), (lxiii), (lxiv) or (lxxxii) will
be deemed to materially and adversely affect the value of the related Mortgage
Loan or the interest of the Purchaser therein.
At
the
time of repurchase of any deficient Mortgage Loan, the Purchaser and the Seller
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the repurchased Mortgage Loan. In the event the Repurchase Price
is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase the related Mortgage Loan Schedule shall be amended to
reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
33
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are set forth in Exhibit 13 hereto, with the Mortgage Note
endorsed as required therein. The Seller 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 will be retained by the Seller. For the month of
substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the
Seller in respect of such Deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan
from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Subsections 7.01 and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller will determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the sum of (x) the product of (i) the amount of such
shortfall and (ii) the purchase price percentage used to calculate the Purchase
Price, as stated in the related Commitment Letter and (y) accrued interest
on
the amount of such shortfall to the last day of the month such substitution
occurs, shall be distributed by the Seller in the month of substitution pursuant
to the Servicing Addendum. Accordingly, on the date of such substitution, the
Seller, as applicable, will deposit from its own funds into the Custodial
Account an amount equal to such amount.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Initial Purchaser and any subsequent Purchaser and hold them
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 Seller’s representations and
warranties, respectively, contained in this Section 7, including, without
limitation, any loss incurred by the Purchaser of any Prepayment Charge to
which
the Purchaser would otherwise be entitled pursuant to this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03 to cure, substitute for or repurchase a defective Mortgage
Loan and to indemnify the Initial Purchaser and any subsequent Purchaser as
provided in this Subsection 7.03 constitute the sole remedies of the
Initial Purchaser and any subsequent Purchaser respecting a breach of the
foregoing representations and warranties.
34
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 or 7.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser, and (ii) demand upon the Seller
by the Purchaser for compliance with the relevant provisions of this
Agreement.
In
addition to the foregoing, in the event that a breach of any representation
of
the Seller materially and adversely affects the interests of the Purchaser
in any Prepayment Charge or the collectability of such Prepayment Charge, the
Seller shall pay the amount of the scheduled Prepayment Charge to the Purchaser
upon the payoff of any related Mortgage Loan.
Subsection
7.04.
|
Repurchase
of Certain Mortgage Loans; Premium Protection.
|
(a) All
Mortgage Loans with a first Due Date prior to the Closing Date will be current
as of the Closing Date and will make the next contractual Payment due to the
Purchaser following the Closing Date within thirty (30) days of the related
Due
Date, and any loan with a first Due Date on or after the Closing Date will
make
such contractual Payment within thirty days of the related Due Date or, in
each
such case, such Mortgage Loan will be repurchased at the Repurchase Price,
which
shall be paid as provided for in Subsection 7.03. The Seller shall notify
the Purchaser of any such default under this Subsection 7.04(a) within thirty
(30) days of any such Mortgage Loan becoming thirty (30) days
delinquent.
(b) In
the
event that any Mortgage Loan prepays-in-full within three (3) months following
the related Closing Date, Seller shall remit to the Initial Purchaser an amount
equal to the product of (i) the excess of (A) the percentage of par as stated
in
the related Confirmation as the purchase price percentage (subject to adjustment
as provided therein) over (B) 100%, times (ii) the outstanding principal balance
of such Mortgage Loan as of the Cut-off Date (the “Premium Recapture Amount”);
provided, however, that such Premium Recapture Amount shall be subject to
reduction (the maximum amount of such reduction limited to the Premium Recapture
Amount) to the extent of any legally enforceable Prepayment Charge received
by
the Purchaser in connection with such Mortgage Loan. Such obligation to the
Initial Purchaser shall survive any sale or assignment of the Mortgage Loans
by
the Initial Purchaser to any third party and shall be independently enforceable
by the Initial Purchaser.
(c) In
the
event that any Mortgage Loan is repurchased pursuant to Section 7.03 or 7.04(a),
in addition to its obligations under Section 7.03 and 7.04(a), Seller shall
remit to the Initial Purchaser an amount equal to the product of (i) the excess
of (A) the percentage of par as stated in the related Confirmation as the
purchase price percentage (subject to adjustment as provided therein) over
(B)
100%, times (ii) the outstanding principal balance of such Mortgage Loan as
of
the date of repurchase. Such obligation to the Initial Purchaser shall survive
any sale or assignment of the Mortgage Loans by the Initial Purchaser to any
third party and shall be independently enforceable by the Initial Purchaser.
SECTION
8.
|
Closing.
|
The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Initial 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.
35
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
(a) all
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute a default under
this
Agreement;
(b) the
Initial Purchaser shall have received, or the Initial Purchaser’s attorneys
shall have received in escrow, all Closing Documents as specified in
Section 9, in such forms as are agreed upon and acceptable to the Initial
Purchaser, duly executed by all signatories other than the Initial Purchaser
as
required pursuant to the terms hereof;
(c) the
Seller shall have delivered and released to the Custodian the Mortgage Loan
Documents; and
(d) all
other
terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Initial Purchaser shall pay to the Seller
on
the related Closing Date the Purchase Price, plus accrued interest pursuant
to
Section 4, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION
9.
|
Closing
Documents.
|
(a) On
or
before the Initial Closing Date, the Seller or Servicer, as applicable, shall
submit to the Initial Purchaser fully executed originals of the following
documents:
1. this
Agreement, in four counterparts;
2. a
Custodial Account Letter Agreement in the form attached as Exhibit 7
hereto;
3. as
Escrow
Account Letter Agreement in the form attached as Exhibit 8 hereto;
4. a
Seller’s Officer’s Certificate, in the form of Exhibit 1 hereto, including all
attachments thereto;
5. Reserved;
6. an
Opinion of Counsel to the Seller and Servicer, in the form of Exhibit 2 hereto;
and
7. the
Underwriting Guidelines.
36
(b) The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
1. the
related Confirmation;
2. the
related Mortgage Loan Schedule;
3. a
Custodian’s Trust Receipt and Initial Certification, as required under the
Custodial Agreement, in a form acceptable to the Initial Purchaser;
4. an
Officer’s Certificate, in the form of Exhibit 1-A hereto, including all
attachments thereto;
5. an
Servicer’s Officer’s Certificate, in the form of Exhibit 1-B hereto, including
all attachments thereto;
6. if
requested by the Initial Purchaser, an Opinion of Counsel to the Seller, in
the
form of Exhibit 2 hereto;
7. a
Security Release Certification, in the form of Exhibit 3 hereto executed by
any
Person, as requested by the Initial Purchaser, if any of the Mortgage Loans
has
at any time been subject to any security interest, pledge or hypothecation
for
the benefit of such Person;
8. a
certificate or other evidence of merger or change of name, signed or stamped
by
the applicable regulatory authority, if any of the Mortgage Loans were acquired
by the Seller by merger or acquired or originated by the Seller while conducting
business under a name other than its present name, if applicable;
9. any
modifications, amendments or supplements to the Underwriting Guidelines
following the Initial Closing Date; and
10. an
Assignment and Conveyance in the form of Exhibit 4 hereto; and
11. in
the
event that the Seller’s Underwriting Guidelines have been modified following
delivery to the Initial Purchaser, an updated copy of such Underwriting
Guidelines.
SECTION
10.
|
Costs.
|
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including without
limitation, fees for title policy endorsements and continuations fees for
recording Assignments of Mortgage, the cost of any recording service for
recording such Assignments of Mortgage, fees for transferring ownership of
any
MERS Loans on the MERS System and the Seller's attorney's fees, shall be paid
by
the Seller. The Seller shall also pay those expenses of the Custodian related
to
the preparation of Trust Receipts and Certification in connection with the
sale
of the Mortgage Loans.
37
SECTION
11.
|
Servicer’s
Servicing Obligations.
|
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans during the Interim Servicing Period, directly or through one
or
more subservicers, in accordance with the terms and provisions set forth in
the
Servicing Addendum attached as Exhibit 9, which Servicing Addendum is
incorporated herein by reference. In addition, with respect to any Mortgage
Loan
that is not subject to an assignable “life of loan” Flood Zone Service Contract
or Tax Servicer Contract as of the related Closing Date, the Servicer shall
pay
the cost incurred by the Purchaser or its designee to obtain such a
contract.
SECTION
12.
|
Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole
Loan
Transfer or a Pass-Through Transfer on One or More Reconstitution
Dates.
|
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, the Purchaser may effect either:
(1)
one
or
more Whole Loan Transfers; and/or
(2)
one
or
more Pass-Through Transfers.
With
respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may
be, entered into by the Purchaser, the Seller agrees:
(1)
|
to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, bond insurers and
such
other parties as the Purchaser shall designate and participating
in
meetings with prospective purchasers of the Mortgage Loans or interests
therein and providing information reasonably requested by such
purchasers;
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(2)
|
to
execute all Reconstitution Agreements, which may include, without
limitation, an Assignment and Recognition Agreement in substantially
the
form attached hereto as Exhibit 10 and an Indemnification Agreement
in a
form to be mutually agreed upon between the Depositor and the Company,
provided that each of the Seller and the Purchaser is given an opportunity
to review and reasonably negotiate in good faith the content of such
other
documents not specifically referenced or provided for
herein;
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(3)
|
with
respect to any Whole Loan Transfer or Pass-Through Transfer,
or any transfer of servicing with respect to any Mortgage Loans,
the
Seller shall make the representations and warranties regarding the
Seller
and the Mortgage Loans set forth herein and such additional
representations and warranties as are necessary to effect such Whole
Loan
Transfer, Pass-Through Transfer
or servicing transfer,
as of the date of the Whole Loan Transfer, Pass-Through
Transfer
or servicing transfer (except with respect to the representations
and
warranties set forth in Subsections 7.02 (xviii), (xix), (xxiii)
and
(xxxiv), which shall be made only as of the Servicing Transfer
Date),
modified to the extent necessary to accurately reflect the pool statistics
of the Mortgage Loans as of the date of such Whole Loan Transfer,
Pass-Through Transfer
or servicing transfer
and any events or circumstances existing subsequent to the related
Closing
Date(s);
|
38
(4)
|
to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller’s
underwriting standards, the Seller, its financial condition and its
mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Purchaser including, without
limitation, information on the Mortgage Loans and the Seller’s
underwriting standards, and to deliver to the Purchaser any similar
non
public, unaudited financial information, in which case the Purchaser
shall
bear the cost of having such information audited by certified public
accountants if the Purchaser desires such an audit, or as is otherwise
reasonably requested by the Purchaser and which the Seller is capable
of
providing without unreasonable effort or expense, and to indemnify
the
Purchaser and its affiliates for material misstatements or omissions
or
any alleged misstatements or omissions contained in such
information;
|
(5)
|
to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
|
(6)
|
to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Pass-Through Transfers, as the case may be, such in-house
Opinions of Counsel for a Pass-Through Transfer to be in the form
reasonably acceptable to the Purchaser, it being understood that
the cost
of any opinions of outside special counsel that may be required for
a
Whole Loan Transfer or Pass-Through Transfer, as the case may be,
shall be
the responsibility of the
Purchaser;
|
(7)
|
to
negotiate and execute one or more subservicing agreements between
the
Seller and any master servicer designated by the Purchaser in its
sole
discretion after consultation with the Seller and/or one or more
custodial
and servicing agreements among the Purchaser, the Seller and a third
party
custodian/trustee designated by the Purchaser in its sole discretion
after
consultation with the Seller, in either case for the purpose of pooling
the Mortgage Loans with other Mortgage Loans for resale or securitization;
and
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39
(8)
|
in
connection with any securitization of any Mortgage Loans, to execute
a
pooling and servicing agreement, which pooling and servicing agreement
may, at the Purchaser’s direction, contain contractual provisions
including, but not limited to, a 24-day certificate payment delay
(54-day
total payment delay), servicer advances of delinquent scheduled payments
of principal and interest through liquidation (unless deemed
non-recoverable) and prepayment interest shortfalls (to the extent
of the
monthly servicing fee payable thereto), servicing and mortgage loan
representations and warranties which in form and substance conform
to the
representations and warranties in this Agreement and to secondary
market
standards for securities backed by mortgage loans similar to the
Mortgage
Loans and such provisions with regard to servicing responsibilities,
investor reporting, segregation and deposit of principal and interest
payments, custody of the Mortgage Loans, and other covenants as are
required by the Purchaser and one or more nationally recognized rating
agencies for “AAA” rated mortgage pass-through transactions which are
“mortgage related securities” for the purposes of the Secondary Mortgage
Market Enhancement Act of 1984, unless otherwise mutually agreed.
If the
Purchaser deems it advisable at any time to pool the Mortgage Loans
with
other mortgage loans for the purpose of resale or securitization,
the
Seller agrees to execute one or more subservicing agreements between
itself (as servicer) and a master servicer designated by the Purchaser
at
its sole discretion, and/or one or more servicing agreements among
the
Seller (as servicer), the Purchaser and a trustee designated by the
Purchaser at its sole discretion, such agreements in each case
incorporating terms and provisions substantially identical to those
described in the immediately preceding
paragraph.
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SECTION
13. COMPLIANCE
WITH REGULATION AB
Subsection
13.01.
|
Intent
of the Parties; Reasonableness.
|
The
Purchaser and the Seller acknowledge and agree that the purpose of Section
13 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller 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, any Master Servicer 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 Seller shall cooperate fully with the Purchaser
and the Master Servicer to deliver to the Purchaser and the Master Servicer
(including any of their assignees or designees) and any Depositor, any and
all
statements, reports, certifications, records and any other information
reasonably available to the Seller and necessary in the good faith determination
of the Purchaser, the Master Servicer or any Depositor to permit the Purchaser,
the Master Servicer or such Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the Seller, 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.
40
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller 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.
Subsection
13.02.
|
Additional
Representations and Warranties of the Seller.
|
(a) The
Seller shall be deemed to represent to the Purchaser, to any Master Servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any Master Servicer or any Depositor under Section 13.03 that, except
as disclosed in writing to the Purchaser, such Master Servicer or such Depositor
prior to such date: (i) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Seller or any Third-Party
Originator; and (ii) there are no affiliations, relationships or transactions
relating to the Seller 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, any Master Servicer or any Depositor on any date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 13.03, the Seller shall, within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
Subsection
13.03.
|
Information
to Be Provided by the Seller.
|
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator 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 (vi) of this Section, and (ii)
as
promptly as practicable following notice to or discovery by the Seller, 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 Section.
41
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator 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 Seller and each Third-Party Originator;
and
D a
description of any affiliation or relationship between the Seller, each
Third-Party Originator and any of the following parties to a Securitization
Transaction, as such parties are identified to the Seller by the Purchaser
or
any Depositor in writing in advance of such Securitization
Transaction:
(1)
|
the
sponsor;
|
(2)
|
the
depositor;
|
(3)
|
the
issuing entity;
|
(4)
|
any
servicer;
|
(5)
|
any
trustee;
|
(6)
|
any
originator;
|
(7)
|
any
significant obligor;
|
(8)
|
any
enhancement or support provider;
and
|
(9)
|
any
other material transaction party.
|
(b) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Notwithstanding the foregoing, the
Seller shall not be required to provide Static Pool Information if such
information is unknown or unavailable to the Seller without unreasonable effort
or expense; provided, however, that upon reasonable prior written notice, the
Seller will provide a certificate to the Purchaser or any Depositor certifying
that such information is not available without unreasonable effort or expense.
Such Static Pool Information shall be prepared by the Seller (or Third-Party
Originator) on the basis of its reasonable, good faith interpretation of the
requirements of Item 1105(a)(1)-(3) of Regulation AB. To the extent that there
is reasonably available to the Seller (or Third-Party Originator) Static Pool
Information with respect to more than one mortgage loan type, the Purchaser
or
any Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The content of such
Static Pool Information may be in the form customarily provided by the Seller,
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.
42
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
With
respect to any Mortgage Loans subject to a Securitization Transaction subsequent
to the Closing Date, the Purchaser shall use commercially reasonable efforts
to
provide the Seller with loan performance information, in the form customarily
provided by the Purchaser, reasonably necessary for the Seller to comply with
its obligations under Regulation AB. Notwithstanding
the foregoing, the Purchaser shall not be required to deliver loan performance
information with respect to any Mortgage Loan originated more than five years
prior to the date of such request. The Purchaser does not make any
representations, warranties or covenants regarding the completeness or accuracy
of any loan performance information provided pursuant to this Subsection 13.03.
In addition, the Purchaser shall not provide any indemnification with respect
to
loan performance information included in any disclosure document filed by the
Seller or any third-party in connection with a Securitization Transaction.
43
(c) If
so
requested by the Purchaser, any Master Servicer or any Depositor for the purpose
of satisfying its reporting obligation under the Exchange Act with respect
to
any class of asset-backed securities, the Seller shall (or shall cause each
Third-Party Originator to) (i) provide prompt notice to the Purchaser, any
Master Servicer and any Depositor in writing of (A) any material litigation
or
governmental proceedings involving the Seller or any Third-Party Originator,
(B)
any affiliations or relationships that develop following the closing date of
a
Securitization Transaction between the Seller or any Third-Party Originator
and
any of the parties specified in clause (d) of paragraph (i) of this Section
(and
any other parties identified in writing by the requesting party) with respect
to
such Securitization Transaction, (C) any Event of Default under the terms of
this Agreement or any Reconstitution Agreement and (D) any merger, consolidation
or sale of substantially all of the assets of the Seller, and (ii) provide
to
the Purchaser and any Depositor a description of such proceedings, affiliations
or relationships.
(d) As
a
condition to the succession to the Seller or any subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
Reserved.
|
Subsection
13.05.
|
Reserved.
|
Subsection
13.06.
|
Reserved.
|
Subsection
13.07.
|
Indemnification;
Remedies.
|
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, any
Master Servicer 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, agents and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), and shall hold each of them harmless from and against any claims,
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:
44
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided in written or electronic form under this Section 13 by or
on
behalf of the Seller, or provided under this Section 13 by or on behalf of
any
Third-Party Originator (collectively, the “Seller Information”), or (B) the
omission or alleged omission to state in the Seller Information a material
fact
required to be stated in the Seller 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 Seller Information
and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Seller Information or any portion
thereof is presented together with or separately from such other
information;
(ii) any
breach by the Seller of its obligations under this Section 13 or any failure
by
the Seller or any Third-Party Originator to deliver any information, report,
certification, accountants’ letter or other material when and as required under
this Section 13; or
(iii) any
breach by the Seller of a representation or warranty set forth in Section
13.02(a) or in a writing furnished pursuant to Section 13.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 13.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Seller in connection with
its
performance under this Section 13.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller 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 Seller on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b)(i) Any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Section 13, or any breach by the Seller of a representation
or warranty set forth in Section 13.02(a) or in a writing furnished pursuant
to
Section 13.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such
closing date, or any breach by the Seller of a representation or warranty in
a
writing furnished pursuant to Section 13.02(b) to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Seller under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser,
Master Servicer or Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Seller 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 Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
45
(ii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor, as
such
are incurred, in connection with the termination of the Seller 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.
To
the extent of information included in the offering documents related to a
Securitization Transaction or filed by the Purchaser, a Depositor or any of
their affiliates and not provided by the Seller, Purchaser shall indemnify
or
cause the entity obligated to indemnify the Purchaser for such information
to
indemnify the Seller and each affiliate of the Seller and the respective present
and former directors, officers, employees and agents of each of the foregoing
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon any untrue statement of material fact
contained or alleged to be contained in any filing with the Commission or the
omission or alleged omission to state in any filing with the Commission a
material fact required to be stated or necessary to be stated in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement, alleged untrue statement, omission, or alleged omission
arose out of or was based upon any information or statement, other than the
Seller Information, in a filing with the Commission..
SECTION
14.
|
The
Seller and the Servicer.
|
Subsection
14.01.
|
Additional
Indemnification by the Seller and the Servicer.
|
In
addition to the indemnification provided in Subsection 7.03, the Seller and
the
Servicer shall indemnify the Initial Purchaser and any subsequent Purchaser
and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that the Initial Purchaser
and
any subsequent Purchaser may sustain in any way related to the failure of the
Seller or the Servicer to perform its obligations under this Agreement including
but not limited to its obligation to service and administer the Mortgage Loans
in strict compliance with the terms of this Agreement or any Reconstitution
Agreement entered into pursuant to Section 12.
46
Subsection
14.02.
|
Merger
or Consolidation of the Seller and the Servicer.
|
The
Seller and the Servicer shall each keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation except as permitted herein, and shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans, and to enable
the
Seller and the Servicer to perform its duties under this Agreement.
Any
Person into which the Seller or the Servicer may be merged or consolidated,
or
any corporation resulting from any merger, conversion or consolidation to which
the Seller or the Servicer shall be a party, or any Person succeeding to the
business of the Seller or the Servicer, shall be the successor of the Seller
or
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person shall be (i) an institution whose deposits are insured by FDIC or a
company whose business is the origination and servicing of mortgage loans and
(ii) have a GAAP net worth of not less than $25,000,000 and shall satisfy any
requirements of Section 16 with respect to the qualifications of a successor
to
the Seller.
Subsection
14.03.
|
Limitation
on Liability of the Seller, the Servicer and Others.
|
Neither
the Seller, the Servicer nor any of the officers, employees or agents of the
Seller or the Servicer shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
in
connection with the servicing of the Mortgage Loans pursuant to this Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect the Seller or the Servicer or any such person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement,
or
any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Seller, the Servicer and any
officer, employee or agent of the Seller or the Servicer 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 Seller and the Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its obligation to sell or duty to service
the
Mortgage Loans in accordance with this Agreement and which in its opinion may
result in its incurring any expenses or liability; provided, however, that
the
Seller or the Servicer 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
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities for which the Purchaser shall be
liable, the Seller and the Servicer shall be entitled to reimbursement therefor
from the Purchaser upon written demand except when such expenses, costs and
liabilities are subject to the Seller’s or the Servicer’s indemnification under
Subsections 7.03 or 14.01.
47
Subsection
14.04.
|
Servicer
Not to Resign.
|
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual written consent of the Servicer
and
the Purchaser or upon the determination that its servicing duties hereunder
are
no longer permissible under applicable law and such incapacity cannot be cured
by the Servicer in which event the Servicer may resign as servicer. Any such
determination permitting the resignation of the Servicer as servicer shall
be
evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser and which shall be provided at the cost of the Servicer. No such
resignation shall become effective until a successor shall have assumed the
Servicer’s responsibilities and obligations hereunder in the manner provided in
Section 17.
Subsection
14.05.
|
No
Transfer of Servicing.
|
With
respect to the retention of the Servicer to service the Mortgage Loans during
the Interim Servicing Period, the Servicer acknowledges that the Purchaser
has
acted in reliance upon the Servicer’s independent status, the adequacy of its
servicing facilities, plan, personnel, records and procedures, its integrity,
reputation and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section, the Servicer shall not either
assign this Agreement or the servicing hereunder or delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all
or
substantially all of its property or assets, without the prior written approval
of the Purchaser, which consent will not be unreasonably withheld.
SECTION
15.
|
Default.
|
Subsection
15.01.
|
Events
of Default.
|
In
case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of three (3) Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser; or
(ii) failure
on the part of the Seller or the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Seller or the Servicer set forth in this Agreement which continues unremedied
for a period of thirty (30) days (except that such number of days shall be
fifteen (15) in the case of a failure to pay any premium for any insurance
policy required to be maintained under this Agreement) after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller or the Servicer by the Purchaser or by the Custodian;
or
48
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, shall
have been entered against the Seller or the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
(60)
days; or
(iv) the
Seller or the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating
to
the Seller or the Servicer or of or relating to all or substantially all of
its
property; or
(v) the
Seller or the Servicer 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 or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(vi) failure
by the or the Servicer to be in compliance with the “doing business” or
licensing laws of any jurisdiction where a Mortgaged Property is located;
or
(vii) the
Servicer is not eligible to act as servicer or master servicer for mortgage
loans subject to residential mortgage backed securities transactions rated
by
any nationally recognized rating agency or is eligible to act as such only
with
enhanced credit support, or the Seller’s credit rating is reduced by any
nationally recognized rating agency below its rating on the Initial Closing
Date; or
(viii) the
Servicer attempts to assign its right to servicing compensation hereunder or
the
Seller or the Servicer attempts, without the consent of the Purchaser, to sell
or otherwise dispose of all or substantially all of its property or assets
or to
assign this Agreement or the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof;
(ix) Seller’s
membership in MERS is terminated for any reason and any of the Mortgage Loans
then serviced by the Seller are MERS Mortgage Loans; or
(x) the
Servicer fails to duly perform, within the required time period, its obligations
under Section 13 or Sections 11.23 or 11.24 of the Servicing Addendum, which
failure continues unremedied for a period of three (3) days after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans.
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller or the Servicer,
as
applicable, may, in addition to whatever rights the Purchaser may have at law
or
equity to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Servicer as servicer under
this
Agreement. On or after the receipt by the Seller or the Servicer , as applicable
of such written notice, all authority and power of the Servicer to service
the
Mortgage Loans under this Agreement shall on the date set forth in such notice
pass to and be vested in the successor appointed pursuant to Section
17.
49
Upon
the
termination of the Servicer as servicer hereunder, the Initial Purchaser, or
its
designee, shall assume all servicing responsibilities related to the Mortgage
Loans and the Servicer shall cease all servicing responsibilities related to
the
Mortgage Loans. The Servicer shall, at its cost and expense, take such steps
as
may be necessary or appropriate to effectuate and evidence the transfer of
the
servicing of the related Mortgage Loans to the Initial Purchaser, or its
designee. The Servicer agrees to execute and deliver such instruments and take
such actions as the Initial Purchaser, or its designee may, from time to time,
reasonably request to carry out the servicing transfer. All servicing transfer
costs shall be paid by the Servicer upon presentation of reasonable
documentation of such costs.
Subsection
15.02. Waiver
of Defaults.
The
Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and its consequences. Upon any such 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.
SECTION
16.
|
Termination.
|
The
respective obligations and responsibilities of the Seller, as interim servicer,
shall terminate at the expiration of the Interim Servicing Period unless
terminated on an earlier date at the option of the Purchaser or pursuant to
this
Section 16 or Section 15. Upon written request from the Purchaser in connection
with any such termination, the Servicer shall prepare, execute and deliver,
any
and all documents and other instruments, place in the Purchaser’s possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, including any transfers on the MERS System, or otherwise,
at
the Servicer’s sole expense. The Servicer agrees to cooperate with the Purchaser
and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder as interim servicer, including, without
limitation, the transfer to such successor for administration by it of all
cash
amounts which shall at the time be credited by the Servicer to the Custodial
Account, REO Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
SECTION
17.
|
Successor
to the Servicer.
|
Prior
to
termination of Servicer’s responsibilities and duties under this Agreement
pursuant to Section 12, 14 or 15, the Purchaser shall (i) succeed to and assume
all of the Servicer’s responsibilities, rights, duties and obligations under
this Agreement, or (ii) appoint a successor which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Servicer
as interim servicer 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 Servicer’s duties, responsibilities and liabilities
as interim servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Servicer
as
interim servicer pursuant to the aforementioned Sections shall not become
effective until a successor shall be appointed pursuant to this Section 16
and
shall in no event relieve the Seller and the Servicer of the representations
and
warranties made pursuant to Subsections 7.01 and 7.02 and the remedies available
to the Purchaser under Subsection 7.03 or 7.04, it being understood and agreed
that the provisions of such Subsections 7.01, 7.02, 7.03, 7.04 and 14.01 shall
be applicable to the Seller and Servicer notwithstanding any such resignation
or
termination of the Servicer, or the termination of this Agreement.
50
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement provided, however,
that such successor shall not assume, and Servicer shall indemnify such
successor for, any and all liabilities arising out of the Servicer’s acts as
interim servicer. Any termination of the Servicer as interim servicer pursuant
to Section 12, 15 or 16 shall not affect any claims that the Purchaser may
have
against the Servicer arising prior to any such termination or resignation or
remedies with respect to such claims.
The
Servicer shall timely deliver to the successor the funds in the Custodial
Account, REO Account and the Escrow Account and the Servicing Files and Mortgage
Files and related documents and statements held by it hereunder and the Servicer
shall account for all funds. The Servicer shall execute and deliver such
instruments and do such other things all as may reasonably be required to more
fully and definitely vest and confirm in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer as interim
servicer, including making any transfers on the MERS System. The successor
shall
make arrangements as it may deem appropriate to reimburse the Servicer for
amounts the Servicer actually expended as interim servicer pursuant to this
Agreement which the successor is entitled to retain hereunder and which would
otherwise have been recovered by the Servicer pursuant to this Agreement but
for
the appointment of the successor servicer.
SECTION
18.
|
Financial
Statements.
|
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser may make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three (3) fiscal
years respecting which such statements are available. The Seller also shall
make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available information
on
its servicing performance with respect to mortgage loans serviced for others,
including delinquency ratios.
51
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
reasonable questions asked by any prospective purchaser regarding recent
developments affecting the Seller, its loan origination or servicing practices
or the financial statements of the Seller.
SECTION
19.
|
Mandatory
Delivery: Grant of Security Interest.
|
The
sale
and delivery of each Mortgage Loan on or before the related Closing Date is
mandatory from and after the date of the execution of the related Confirmation,
it being specifically understood and agreed that each Mortgage Loan is unique
and identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller’s failure to deliver each of
the related Mortgage Loans or one or more Mortgage Loans otherwise acceptable
to
the Initial Purchaser on or before the related Closing Date. The Seller hereby
grants to the Initial Purchaser a lien on and a continuing security interest
in
each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser’s (i) right to reject
any Mortgage Loan under the terms of this Agreement and the related
Confirmation, and (ii) obligation to pay the related Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
SECTION
20.
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(i)
|
if
to the Purchaser:
|
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxx
Xxxxxxxxxx
(ii)
|
if
to the Seller or Servicer:
|
Decision
One Mortgage Company, LLC
0000
XXXX
Xxx
Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx
52
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
SECTION
21.
|
Severability
Clause.
|
Any
part,
provision, representation or warranty of this Agreement that is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION
22.
|
Counterparts.
|
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
23.
|
Governing
Law.
|
The
Agreement shall be construed in accordance with the laws of the State of New
York without regard to any conflicts of law provisions and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with the laws of the State of New York, except to the extent preempted by
Federal law.
SECTION
24.
|
Intention
of the Parties.
|
It
is the
intention of the parties that the Initial Purchaser is purchasing, and the
Seller is selling, the Mortgage Loans and not a debt instrument of the Seller
or
another security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Initial Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Initial Purchaser
in
the course of such review.
53
SECTION
25.
|
Successors
and Assigns.
|
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Servicer and the Purchaser and the respective successors and assigns
of the Seller, the Servicer and the Purchaser. The Purchaser may assign this
Agreement to any Person to whom any Mortgage Loan is transferred whether
pursuant to a sale or financing and to any Person to whom the servicing or
master servicing of any Mortgage Loan is sold or transferred. Upon any such
assignment, the Person to whom such assignment is made shall succeed to all
rights and obligations of the Purchaser under this Agreement to the extent
of
the related Mortgage Loan or Mortgage Loans and this Agreement, to the extent
of
the related Mortgage Loan or Loans, shall be deemed to be a separate and
distinct Agreement between the Seller, the Servicer and such Purchaser, and
a
separate and distinct Agreement between the Seller, the Servicer and each other
Purchaser to the extent of the other related Mortgage Loan or Loans. In the
event that this Agreement is assigned to any Person to whom the servicing or
master servicing of any Mortgage Loan is sold or transferred, the rights and
benefits under this agreement which inure to the Purchaser shall inure to the
benefit of both the Person to whom such Mortgage Loan is transferred and the
Person to whom the servicing or master servicing of the Mortgage Loan has been
transferred; provided that, the right to require a Mortgage Loan to be
repurchased by the Seller pursuant to Subsection 7.03 or 7.04 shall be retained
solely by the Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller or the Servicer to a third party without the consent
of the Purchaser.
SECTION
26.
|
Waivers.
|
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
SECTION
27.
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
28.
|
Nonsolicitation.
|
The
Seller and the Servicer covenant and agree that they will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
to
personally, by telephone, mail e-mail or otherwise, solicit the Mortgagor under
any Mortgage Loan to refinance the Mortgage Loan, in whole or in part or provide
information to any other entity to solicit the refinancing of any Mortgage
Loan
in whole or in part; provided that, the foregoing shall not preclude the Seller
or the Servicer from engaging in solicitations to the general public by
newspaper, radio, television or other media which are not directed toward the
Mortgagors or from refinancing the Mortgage Loan of any Mortgagor who, without
solicitation, contacts the Seller or the Servicer to request the refinancing
of
the related Mortgage Loan.
SECTION
29.
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
54
(a)
|
the
terms defined in this Agreement have the meanings assigned to them
in this
Agreement and include the plural as well as the singular, and the
use of
any gender herein shall be deemed to include the other
gender;
|
(b)
|
accounting
terms not otherwise defined herein have the meanings assigned to
them in
accordance with generally accepted accounting
principles;
|
(c)
|
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
|
(d)
|
reference
to a Subsection without further reference to a Section is a
reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs
and other subdivisions;
|
(e)
|
the
words “herein,” “hereof,” “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular provision;
and
|
(f)
|
the
term “include” or “including” shall mean without limitation by reason of
enumeration.
|
SECTION
30.
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
31.
|
Further
Agreements.
|
The
Seller, the Servicer and the Purchaser each agree to execute and deliver to
the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of
this
Agreement.
55
SECTION
32.
|
Third-Party
Beneficiary.
|
Each
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereunder as if it were a direct party
to this Agreement.
SECTION
33.
|
Entire
Agreement.
|
This
Agreement, the Confirmation and the exhibits and schedules hereto constitute
the
entire agreement and understanding of the parties with respect to the matters
and transactions contemplated by this Agreement and, except to the extent
otherwise set forth in writing, supersedes any prior agreement and
understandings with respect to those matters and transactions. In the event
of
any contradiction, conflict or inconsistency between the terms and provisions
of
this Agreement and the terms and provisions of any Confirmation, the terms
and
provisions of such Confirmation will govern.
SECTION
34.
|
Confidentiality.
|
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by law or
in
connection with resales of Mortgage Loans by the Initial Purchaser, each party
agrees to keep all non-public information regarding the other party strictly
confidential, and to use all such information solely in order to effectuate
the
purpose of this Agreement.
Each
party shall only use the Nonpublic Personal Information (as defined below)
received from the other party related to any mortgage loans sold, or offered
for
sale, by the Seller to the Initial Purchaser under the Agreement in accordance
with federal and state laws and regulations, including but not limited to Title
V of the Xxxxx-Xxxxx Xxxxxx Act of 1999 (“GLBA”) and applicable implementing
regulations. Each party shall maintain commercially reasonable security
procedures to safeguard the confidentiality of such Nonpublic Personal
Information and to prevent unauthorized disclosure of, access to, or use by
any
unauthorized party, except as permitted by this Agreement or applicable law.
In
particular, each party has developed, implemented and will maintain effective
information security policies and procedures that include administrative,
technical and physical safeguards designed to 1) ensure the security and
confidentiality of Nonpublic Personal Information provided hereunder, 2) protect
against anticipated threats or hazards to the security or integrity of such
Nonpublic Personal Information, 3) protect against unauthorized access of use
of
such Nonpublic Personal Information, and 4) ensure the proper disposal of
Nonpublic Personal Information. Each party’s personal handling such Nonpublic
Personal Information have been appropriately trained in the implementation
of
such party’s information security policies and procedures. Each party regularly
audits and reviews its information security policies and procedures to ensure
their continued effectiveness and determine whether adjustments are necessary
in
light of circumstances including, without limitation, changes in technology,
customer information systems or threats or hazards to Nonpublic Personal
Information. For the purpose of this Agreement, “Nonpublic Personal Information”
shall have the meaning set forth in 16 C.F.R. § 313.3(n).
56
IN
WITNESS WHEREOF, the Seller, the Servicer and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
DECISION
ONE MORTGAGE COMPANY, LLC
(Seller and Servicer)
By:
________________________________
Name:
Title:
HSBC
BANK
USA, NATIONAL ASSOCIATION
(Initial Purchaser)
By:
________________________________
Name:
Title:
57
EXHIBIT
1
ASSISTANT
SECRETARY’S CERTIFICATE
OF
DECISION
ONE MORTGAGE COMPANY, LLC
I,
Xxxxxxx X. Xxxxx, hereby certify that I am a duly appointed, qualified and
acting Assistant Secretary of DECISION
ONE MORTGAGE COMPANY, LLC,
a North
Carolina Limited Liability Company (the “Company”), and hereby further certify
to the following
1.
|
Attached
hereto as Exhibit 1 is a true, correct and complete copy of the Integrated
Limited Liability Company Operating Agreement of the Company which
is in
full force and effect on the date hereof and which has been in effect
without amendment, waiver, rescission or modification since August
31,
1999.
|
2.
|
Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of
the Company which are in effect on the date hereof and which have
been in
effect without amendment, waiver rescission or modification since
March 4,
1996.
|
3.
|
Attached
hereto as Exhibit 3 is a certificate of existence of the Company
issued
State of North Carolina Department of The Secretary of State on the
date
specified therein, and, to my knowledge, no event has occurred since
the
date thereof which would impair such
standing.
|
4.
|
Attached
hereto as Exhibit 4 is a true, correct and complete copy of the
resolutions adopted by the Managers of the Company on [________],
which
have not been rescinded or
modified.
|
5.
|
Each
person who, as an officer or representative of the Company, signed
(a) the
Master Mortgage Loan Purchase and Interim Servicing Agreement, dated
as of
____________, 200_, between the Company, as seller and interim servicer,
and HSBC Bank USA, National Association, as purchaser, and (b) any
other
document delivered by the Company on the date hereof in connection
with
the agreements set forth above 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.
|
6.
|
No
proceedings looking toward merger, liquidation, dissolution or bankruptcy
of the Company are pending or
contemplated.
|
7.
|
All
of the representations and warranties of the Company contained in
Subsections 7.01 and 7.02 of the Agreement were true and correct
in all
material respects as of the date of the Agreement and are true and
correct
in all material respects as of the date
hereof.
|
Exh
1-1
8.
|
The
Company has performed all of its duties and has satisfied all the
material
conditions on its part to be performed or satisfied prior to the
related
Closing Date pursuant to the Agreement and the related
Confirmation.
|
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Agreement.
IN
WITNESS WHEREOF, the
undersigned has executed this Certificate on this the ____ day of
_______________ 2006.
_________________________________
Xxxxxxx
X. Xxxxx
Assistant
Secretary
Exh
1-2
EXHIBIT
1
Decision
One Mortgage Company, LLC
Limited
Liability Company Operating Agreement
Exh
1-3
EXHIBIT
2
Decision
One Mortgage Company, LLC
Bylaws
Exh
1-4
EXHIBIT
3
Decision
One Mortgage Company, LLC
Certificate
of Good Standing - North Carolina
Exh
1-5
EXHIBIT
4
Decision
One Mortgage Company, LLC
Resolutions
of the Managers of the Company
Exh
1-6
EXHIBIT
2
[FORM
OF
OPINION OF COUNSEL TO THE SELLER AND THE SERVICER]
[DATE]
HSBC
Bank
USA, National Association
[ADDRESS]
Re:
|
Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as
of
______________, 2006
|
Ladies
and Gentlemen:
I
am an
Associate General Counsel of HSBC - North America. In that capacity, I have
acted as counsel to Decision One Mortgage Company, LLC, a North Carolina limited
liability company (the “Company”),
with
respect to certain matters in connection with the execution and delivery of
the
Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
_______________, 2006 (the “MLPISA”),
by
and between HSBC Bank USA, National Association and the Company. Capitalized
terms not otherwise defined herein have the meanings set forth in the
MLPISA.
In
arriving at the opinions expressed below, I, or attorneys working under my
direction, have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following documents:
the
MLPISA; and
such
other documents, records and papers as I have deemed necessary and relevant
as a
basis for this opinion.
For
the
purpose of rendering the opinions expressed below, I, or attorneys working
under
my direction, have made such documentary, factual and legal examinations as
deemed necessary under the circumstances. As to factual matters, I have relied
upon statements of officers and other representatives of the Company, and upon
such other documents as I deemed appropriate, which factual matters have not
been independently established or verified by me. I have also assumed, among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
Exh
2-1
1. The
Company is a limited liability company, duly organized and validly existing
under the laws of the State of North Carolina and is qualified to transact
business in, and is in good standing under, the laws of the State of North
Carolina.
2. The
Company has the power to engage in the transactions contemplated by the MLPISA
and all requisite power, authority and legal right to execute and deliver the
MLPISA and to perform and observe the terms and conditions of the MLPISA and
the
Confirmation.
3. The
MLPISA and the Confirmation have been duly authorized, executed and delivered
by
the Company and constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their respective terms.
4. No
consent, approval, authorization or order of any state or federal court or
governmental agency or body is required for the execution, delivery and
performance by the Company of the MLPISA and the Confirmation or the
consummation of the transactions contemplated by the MLPISA and Confirmation,
except for those consents, approvals, authorizations or orders which previously
have been obtained.
5. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of, the MLPISA and the Confirmation will result in a breach of any term
or
provision of the limited liability company agreement or certificate of formation
of the Company or, to the best of my knowledge, will conflict with, result
in a
breach or violation of, constitutes a default under, (i) the terms of any
indenture or other agreement or instrument known to me to which the Company
is a
party or by which it is bound, the breach of which would be likely to impair
materially the ability of the Company to perform under the terms of the MLPISA,
(ii) any state or federal statute or regulation applicable to the Company,
or
(iii) any order of any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company, except in
any
such case where the default, breach or violation would not have a material
adverse effect on the Company or its ability to perform its obligations under
the MLPISA.
6. There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Company that, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
MLPISA or that would be likely to impair materially the ability of the Company
to perform under the terms of the MLPISA.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A.
|
I
have assumed that all parties to the MLPISA other than the Company
have
all requisite power and authority to execute, deliver and perform
their
respective obligations under the MLPISA, and that the MLPISA has
been duly
authorized by all necessary corporate action on the part of such
parties,
has been executed and delivered by such parties and constitutes the
legal,
valid and binding obligations of such
parties.
|
Exh
2-2
B.
|
My
opinion expressed in paragraph 3 above is subject to the qualifications
that (i) the enforceability of the MLPISA may be limited by the effect
of
laws relating to (a) bankruptcy, reorganization, insolvency, moratorium
or
other similar laws now or hereafter in effect relating to creditors’
rights generally, including, without limitation, the effect of statutory
or other laws regarding fraudulent conveyances or preferential transfers,
and (b) general principles of equity upon the specific enforceability
of
any of the remedies, covenants or other provisions of the MLPISA
and upon
the availability of injunctive relief or other equitable remedies
and the
application of principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
as such
principles relate to, limit or affect the enforcement of creditors’ rights
generally and the discretion of the court before which any proceeding
for
such enforcement may be brought; and (ii) I express no opinion herein
with
respect to the validity, legality, binding effect or enforceability
of
provisions for indemnification in the MLPISA to the extent such provisions
may be held to be unenforceable as contrary to public
policy.
|
C.
|
I
have assumed, without independent check or certification, that there
are
no agreements or understandings among the Company and any other party
that
would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
|
I
am
licensed to practice law in the State of Illinois. In giving the opinions set
forth above, I express no opinion other than as to the general corporate law
of
the State of North Carolina, except as to the matters set forth in paragraph
3,
which are based upon the laws of the State of New York. As to matters of New
York law I have conferred with attorneys employed by HSBC Finance Corporation,
who are licensed to practice law in the State of New York.
This
letter is being delivered solely for your benefit, and may not be quoted, filed
with any governmental authority or other regulatory agency or otherwise
circulated or utilized for any other purpose without my written prior consent.
I
assume no obligation to update or supplement this letter to reflect any facts
or
circumstances that may hereafter develop.
Sincerely,
Xxxx
Xxxxx
Associate
General Counsel - Treasury & Corporate Law
Exh
2-3
EXHIBIT
3
SECURITY
RELEASE CERTIFICATION
I.
|
Release
of Security Interest
|
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase thereof
by HSBC Bank USA, National Association from the Seller named below pursuant
to
that certain Master Mortgage Loan Purchase and Interim Servicing Agreement,
dated as of ______________, 2006, as of the date and time of receipt by
______________________________ of $__________ for such Mortgage Loans (the
“Date
and Time of Sale”), and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Seller named below or its designees as of the
Date
and Time of Sale.
Name
and
Address of Financial Institution
(Name)
(Address)
By:______________________________________
Exh
3-1
II.
|
Certification
of Release
|
The
Seller named below hereby certifies to HSBC Bank USA, National Association
that,
as of the Date and Time of Sale of the above mentioned Mortgage Loans to HSBC
Bank USA, National Association, the security interests in the Mortgage Loans
released by the above named corporation comprise all security interests relating
to or affecting any and all such Mortgage Loans. The Seller warrants that,
as of
such time, there are and will be no other security interests affecting any
or
all of such Mortgage Loans.
[SELLER]
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Exh
3-2
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 2006, Decision One Mortgage Company, LLC (“Seller”) as
the Seller under that certain Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of ___________, 2006 (the “Agreement”) does hereby
sell, transfer, assign, set over and convey to HSBC Bank USA, National
Association as Purchaser under the Agreement, without recourse, but subject
to
the terms of the Agreement, all rights, title and interest of the Seller in
and
to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto,
together with the related servicing rights thereto, Mortgage Files and all
rights and obligations arising under the documents contained therein including,
subject to the terms of the Agreement, the right to any Prepayment Charges
payable with respect thereto. Pursuant to Subsection 6.03 of the Agreement,
the Seller has delivered to the Custodian the documents for each Mortgage Loan
to be purchased as set forth in Exhibit 13 to the Agreement. The contents of
each related Servicing File required to be retained by the Seller to service
the
Mortgage Loans pursuant to the Agreement and thus not delivered to the Purchaser
are and shall be held in trust by the Seller for the benefit of the Purchaser
as
the owner thereof. The Seller’s possession of any portion of each such Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such
retention and possession by the Seller shall be in a custodial capacity only.
The ownership of each Mortgage Note, Mortgage, and the contents of the Mortgage
File and Servicing File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by
or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained by the Seller at the will of
the
Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Subsections 7.01 and 7.02 of the Agreement are true and correct with
respect to the Seller and the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as of the date hereof, and that all statements made
in
the Seller’s Officer’s Certificates and all Attachments thereto remain complete,
true and correct in all respects as of the date hereof,
and that the Mortgage Loan characteristics identified on the attached Schedule
are true and correct as of the date hereof.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
DECISION
ONE MORTGAGE COMPANY, LLC,
Seller
By:
___________________________
Name:
_________________________
Title:
__________________________
Exh
4-1
EXHIBIT
5
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
which shall be retained by the Seller or delivered to the
Custodian:
1.
|
Mortgage
Loan Documents.
|
2.
|
Residential
loan application.
|
3.
|
Mortgage
Loan closing statement.
|
4.
|
Verification
of employment and income.
|
5.
|
Verification
of acceptable evidence of source and amount of
downpayment.
|
6.
|
Credit
report on Mortgagor.
|
7.
|
Residential
appraisal report.
|
8.
|
Photograph
of the Mortgaged Property.
|
9.
|
Survey
of the Mortgaged Property.
|
10.
|
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.
|
11.
|
All
required disclosure statements and statement of Mortgagor confirming
receipt thereof.
|
12.
|
If
available, termite report, structural engineer’s report, water potability
and septic certification.
|
13.
|
Sales
Contract, if applicable.
|
14.
|
Hazard
insurance policy.
|
15.
|
Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date of origination, 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.
|
Exh
5-1
16.
|
Amortization
schedule, if available.
|
17.
|
Payment
history for Mortgage Loans that have been closed for more than 90
days.
|
18.
|
Flood
insurance policy, if applicable.
|
19.
|
Tax
Service Contract.
|
20.
|
Flood
Service Contract.
|
Exh
5-2
EXHIBIT
6
CUSTODIAL
AGREEMENT
Exh
6-1
EXHIBIT
7
CUSTODIAL
ACCOUNT LETTER AGREEMENT
________________________
__, 2006
To:
__________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Interim Servicing Agreement, dated
as of ___________, 2006, we hereby authorize and request you to establish an
account, as a Custodial Account, to be designated as “[SELLER] in trust for the
Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage Loans.” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. You may refuse any deposit which would result in violation of
the
requirement that the account be fully insured as described below. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
[SELLER]
(Seller)
By:
_________________________________
Name:
_______________________________
Title:
________________________________
Date:
________________________________
Exh
7-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
(Depository)
By:
_________________________________
Name:
_______________________________
Title:
________________________________
Date:
________________________________
Exh
7-2
EXHIBIT
8
ESCROW
ACCOUNT LETTER AGREEMENT
________________,
2006
To:
__________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Interim Servicing Agreement, dated
as of ___________, 2006, we hereby authorize and request you to establish an
account, as an Escrow Account, to be designated as “[SELLER] in trust for the
Purchaser and various Mortgagors, Fixed and Adjustable Rate Mortgage Loans.” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Seller. You may refuse any deposit which would result in violation of
the
requirement that the account be fully insured as described below. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
[SELLER]
(Seller)
By:
_________________________________
Name:
_______________________________
Title:
________________________________
Date:
________________________________
Exh
8-1
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
(Depository)
By:
_________________________________
Name:
_______________________________
Title:
________________________________
Date:
________________________________
Exh
8-2
EXHIBIT
9
SERVICING
ADDENDUM
Subsection
11.01 Seller
to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with Accepted Servicing Practices and this
Agreement during the Interim Servicing Period and shall have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which the Seller may deem
necessary or desirable and consistent with the terms of this Agreement. The
Seller shall be responsible for any and all acts of a subservicer and a
subcontractor, and the Seller’s utilization of a subservicer or a subcontractor
shall in no way relieve the liability of the Seller under this
Agreement.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser; provided,
however, that the Servicer shall not permit any modification with respect to
any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, the Servicer
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by the Servicer, the Purchaser shall
furnish the Servicer with any powers of attorney and other documents necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
If
applicable, the Servicer shall notify MERS of the ownership interest of the
Purchaser in each MOM Loan through the MORNET system or MIDANET system, as
applicable, or any other comparable system acceptable to MERS. At any time
during the term of this Agreement, the Purchaser may direct the Servicer to
cause any MOM Loan to be deactivated from the MERS System.
In
servicing and administering the Mortgage Loans, the Servicer 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 mortgage servicing
practices of prudent lending institutions and the Purchaser’s reliance on the
Servicer.
The
Servicer has in place, and will maintain throughout the term of this Agreement,
a procedure by which it confirms, on an ongoing basis, that no Mortgage Loan
is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or regulations promulgated by the Office of Foreign Assets Control of
the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations nor
listed as a “specially designated national or blocked person” for purposes of
the OFAC Regulations.
Exh
9-1
Subsection
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the Closing Date until the expiration of the Interim Servicing Period,
the
Servicer shall proceed diligently to collect all payments due under each
Mortgage Loan when the same shall become due and payable and shall, to the
extent such procedures shall be consistent with this Agreement, follow such
collection procedures as it follows with respect to mortgage loans comparable
to
the Mortgage Loans and held for its own account. Further, the Servicer shall
take special care in ascertaining and estimating annual ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the Mortgage, will become
due and payable to the end that the installments payable by the Mortgagors
will
be sufficient to pay such charges as and when they become due and
payable.
The
Seller shall not waive any Prepayment Charge with respect to any Mortgage Loan
which contains a Prepayment Charge which prepays during the term of the charge.
If the Seller fails to collect the Prepayment Charge upon any prepayment of
any
Mortgage Loan which contains a Prepayment Charge, the Seller shall pay the
Purchaser at such time (by deposit to the Custodial Account) an amount equal
to
amount of the Prepayment Charge which was not collected. Notwithstanding the
above, the Seller may waive (and shall waive, in the case of (v) below) a
Prepayment Charge without paying the Purchaser the amount of the Prepayment
Charge (i) if the Mortgage Loan is in default (defined as 61 days or more
delinquent) and such waiver would maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan,
(ii) if the prepayment is not a result of a refinancing by the Seller or any
of
its affiliates and the Mortgage Loan is foreseen to be in default and such
waiver would maximize recovery of total proceeds taking into account the value
of such Prepayment Charge and the related Mortgage Loan, (iii) if the collection
of the Prepayment Charge would be in violation of applicable laws, (iv) if
the
collection of such Prepayment Charge would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters and (v) notwithstanding any state or federal law to the
contrary, any instance when a Mortgage Loan is in foreclosure. The Seller hereby
acknowledges that for the purposes of the preceding sentence, (i) the law
applicable to the enforcement of prepayment penalties and charges is the law
applicable to the related originator of the Mortgage Loans and (ii) state laws
prohibiting or limiting prepayment penalties or charges are preempted and
thereby inapplicable if the related originator of the mortgage loans is a
federal association or federal bank or an operating subsidiary of such
institution. In the event the Seller determines that (i) the foregoing
acknowledgement is no longer accurate and (ii) applicable state law would
prevent it from fully enforcing prepayment penalties or charges, the Seller
shall (i) provide prompt notice to such effect to the Purchaser and (ii) provide
a written opinion of counsel from a nationally recognized law firm experienced
in regulatory matters concluding that fully enforcing prepayment penalties
or
charges would violate applicable law.
Exh
9-2
Subsection
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use its best efforts, consistent with the procedures that the
Servicer would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Subsection 11.01. The
Servicer shall use its best efforts to realize upon defaulted Mortgage Loans
in
such a manner as will maximize the receipt of principal and interest by the
Purchaser, taking into account, among other things, the timing of foreclosure
proceedings. The foregoing is subject to the provisions that, in any case in
which Mortgaged Property shall have suffered damage, the Servicer shall not
be
required to expend its own funds toward the restoration of such property in
excess of $2,000 unless it shall determine in its discretion (i) that such
restoration will increase the proceeds of liquidation of the related Mortgage
Loan to Purchaser after reimbursement to itself for such expenses, and (ii)
that
such expenses will be recoverable by the Servicer through Insurance Proceeds
or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Subsection 11.05. In the event that any payment due under any Mortgage Loan
is
not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Servicer shall
take such action as it shall deem to be in the best interest of the Purchaser.
In the event that any payment due under any Mortgage Loan remains delinquent
for
a period of 90 days or more, the Servicer shall commence foreclosure
proceedings, provided that prior to commencing foreclosure proceedings, the
Servicer shall notify the Purchaser in writing of the Servicer’s intention to do
so, and the Servicer shall not commence foreclosure proceedings if the Purchaser
objects to such action within ten (10) Business Days of receiving such notice.
The Servicer shall notify the Purchaser in writing of the commencement of
foreclosure proceedings. In such connection, the Servicer shall be responsible
for all costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
Mortgaged Property, as contemplated in Subsection 11.05.
(b) Notwithstanding
the foregoing provisions of this Subsection 11.03, with respect to any Mortgage
Loan as to which the Servicer has received actual notice of, or has actual
knowledge of, the presence of any toxic or hazardous substance on the related
Mortgaged Property the Servicer shall not either (i) obtain title to such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, or
(ii) otherwise acquire possession of, or take any other action, with respect
to,
such Mortgaged Property if, as a result of any such action, the Purchaser would
be considered to hold title to, to be a mortgagee-in-possession of, or to be
an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Servicer has also
previously determined, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
Exh
9-3
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Subsection 11.03 shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Subsection
11.05(v).
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Purchaser to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Purchaser.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Subsection
11.05(v).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Servicer for any related
unreimbursed Servicing Advances, pursuant to Subsection 11.05(iii); second,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the amount
of such recovery will be allocated by the Servicer as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
The portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Servicer pursuant to Subsection 11.05(iii).
Subsection
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts. The creation of any Custodial Account
shall be evidenced by a Custodial Account Letter Agreement in the form of
Exhibit 7.
Exh
9-4
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than in respect of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Subsections 11.10 and 11.11, 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 the Servicer’s normal servicing
procedures, the loan documents or applicable law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(vi) [Reserved]
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with Subsections 7.03
and 7.04 and all amounts required to be deposited by the Servicer in connection
with shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Subsection 7.03;
(viii) any
amounts required to be deposited by the Servicer pursuant to Subsection 11.11
in
connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Servicer’s own funds, without reimbursement
therefor;
(ix) any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Subsection 11.13; and
(x) any
amounts required to be deposited in the Custodial Account pursuant to
Subsections 11.19 or 11.20..
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Subsection 11.01, need not be deposited by the
Servicer in the Custodial Account. Such Custodial Account shall be an Eligible
Account. Any interest or earnings on funds deposited in the Custodial Account
by
the depository institution shall accrue to the benefit of the Servicer and
the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Subsection 11.05(iii). The Servicer shall give
notice to the Purchaser of the location of the Custodial Account when
established and prior to any change thereof.
Exh
9-5
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Servicer shall, on or before twelve o’clock noon
Eastern time on such Business Day, withdraw from the Custodial Account any
and
all amounts payable to the Purchaser and remit such amounts to the Purchaser
by
wire transfer of immediately available funds.
Subsection
11.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Subsection 11.14;
(ii) Reserved;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (ii) 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 Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of such reimbursement, the Servicer’s right thereto
shall be prior to the rights of the Purchaser, except that, where the Servicer
is required to repurchase a Mortgage Loan, pursuant to Subsection 7.03 or
Subsection 7.04, the Servicer’s right to such reimbursement shall be subsequent
to the payment to the Purchaser of the Repurchase Price pursuant to Subsection
7.03 or Subsection 7.04 and all other amounts required to be paid to the
Purchaser with respect to such Mortgage Loans;
(iv) to
pay to
itself pursuant to Subsection 11.21 as servicing compensation (a) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Distribution Date), and (b) the Servicing Fee from
that portion of any payment or recovery as to interest on a particular Mortgage
Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Subsection 7.03 or Subsection 7.04 all amounts received thereon and not
distributed as of the date on which the related Repurchase Price is
determined;
(vi) Reserved
(vii) to
pay,
or to reimburse the Servicer for advances in respect of, expenses incurred
in
connection with any Mortgage Loan pursuant to Subsection 11.03(b), but only
to
the extent of amounts received in respect of the Mortgage Loans to which such
expense is attributable; and
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
Exh
9-6
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (vii) above. The Servicer
shall provide written notification in the form of an Officers' Certificate
to
the Purchaser, on or prior to the next succeeding Distribution Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi)
above.
Subsection
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts. The creation
of
any Escrow Account shall be evidenced by Escrow Account Letter Agreement in
the
form of Exhibit 8.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged Property. The Servicer
shall make withdrawals therefrom only to effect such payments as are required
under this Agreement, and for such other purposes as shall be as set forth
or in
accordance with Subsection 11.08. The Servicer 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 and, to the extent required by law, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
Subsection
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer (i) to effect timely
payments of ground rents, taxes, assessments, water rates, hazard insurance
premiums and comparable items, (ii) to reimburse the Servicer for any Servicing
Advance made by the Servicer with respect to a related Mortgage Loan but only
from amounts received on the related Mortgage Loan which represent late payments
or collections of Escrow Payments thereunder, (iii) to refund to the Mortgagor
any funds as may be determined to be overages, (iv) for transfer to the
Custodial Account in accordance with the terms of this Agreement, (v) for
application to restoration or repair of the Mortgaged Property, (vi) to pay
to
the Servicer, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account, or (vii) to clear and
terminate the Escrow Account on the termination of this Agreement.
Subsection
11.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of fire and hazard insurance coverage and shall obtain, from time to
time, all bills for the payment of such charges, including insurance renewal
premiums and shall effect payment thereof prior to the applicable penalty or
termination date and at a time appropriate for securing maximum discounts
allowable, employing for such purpose deposits of the Mortgagor in the Escrow
Account which shall have been estimated and accumulated by the Servicer in
amounts sufficient for such purposes, as allowed under the terms of the Mortgage
and applicable law. To the extent that the Mortgage does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor at the time they first become due. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of the Mortgagor’s faithful performance
in the payment of same or the making of the Escrow Payments and shall make
advances from its own funds to effect such payments.
Exh
9-7
Subsection
11.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be unreasonably
withheld. In any case, the Custodial Account and Escrow Account shall be
Eligible Accounts.
Subsection
11.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the amount necessary to fully compensate for any damage or loss to the
improvements which are a part of such property on a replacement cost basis
or
(ii) the outstanding principal balance of the Mortgage Loan (including any
cumulative related Negative Amortization) plus with respect to any second lien
Mortgage Loan, the outstanding principal balance of the related first lien
mortgage loan (including any cumulative related Negative Amortization), in
each
case in an amount not less than such amount as is necessary to prevent the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified on a Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Flood Emergency Management Agency as having
special flood hazards and such flood insurance has been made available, the
Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the lesser of (i) the outstanding principal balance
of
the Mortgage Loan (plus, if the Mortgage Loan provides for negative
amortization, the maximum amount of Negative Amortization in accordance with
the
Mortgage)or (ii) the maximum amount of insurance which is available under the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended. The Servicer also shall maintain on any REO Property, fire
and
hazard insurance with extended coverage in an amount which is at least equal
to
the lesser of (i) the maximum insurable value of the improvements which are
a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan (including any cumulative related Negative Amortization) at the
time it became an REO Property plus accrued interest at the Mortgage Interest
Rate and related Servicing Advances, liability insurance and, to the extent
required and available under the National Flood Insurance Act of 1968 or the
Flood Disaster Protection Act of 1973, as amended, flood insurance in an amount
as provided above. Pursuant to Subsection 11.04, any amounts collected by the
Servicer under any such policies other than amounts to be deposited in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with the
Servicer’s normal servicing procedures, shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Subsection 11.05. Any cost incurred
by the Servicer in maintaining any such insurance shall not, for the purpose
of
calculating distributions to the Purchaser, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or
other
additional insurance need be required by the Servicer of the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. All such policies shall
be
endorsed with standard mortgagee clauses with loss payable to the Servicer,
or
upon request to the Purchaser, and shall provide for at least thirty (30) days
prior written notice of any cancellation, reduction in the amount of, or
material change in, coverage to the Servicer. The Servicer shall not interfere
with the Mortgagor’s freedom of choice in selecting either his insurance carrier
or agent, provided, however, that the Servicer shall not accept any such
insurance policies from insurance companies unless such companies currently
reflect a General Policy Rating of A:VI or better in Best’s Key Rating Guide and
are licensed to do business in the state wherein the property subject to the
policy is located.
Exh
9-8
Subsection
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best’s Key Rating Guide rating of
A:VI insuring against hazard losses on all of Mortgaged Properties securing
the
Mortgage Loans, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Subsection 11.10 and otherwise complies
with all other requirements of Subsection 11.10, the Servicer shall conclusively
be deemed to have satisfied its obligations as set forth in Subsection 11.10,
it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with Subsection 11.10, and there shall have been one or more losses which would
have been covered by such policy, deposit in the Custodial Account the amount
not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as interim servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of the Purchaser,
claims under any such blanket policy in a timely fashion in accordance with
the
terms of such policy. Upon request of the Purchaser, the Servicer shall cause
to
be delivered to the Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without thirty (30) days prior written notice
to the Purchaser.
Subsection
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of FNMA or FHLMC on all officers,
employees or other persons acting in any capacity with regard to the Mortgage
Loans to handle funds, money, documents and papers relating to the Mortgage
Loans. The fidelity bond and errors and omissions insurance shall be in the
form
of the Mortgage Banker’s Blanket Bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. Such fidelity bond shall also
protect and insure the Servicer against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release and satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Subsection 11.12
requiring the fidelity bond and errors and omissions insurance shall diminish
or
relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by FNMA in the FNMA
Servicing Guide or by FHLMC in the FHLMC Seller’ and Servicers’ Guide. Upon
request of the Purchaser, the Servicer shall cause to be delivered to the
Purchaser a certified true copy of the fidelity bond and insurance policy and
a
statement from the surety and the insurer that such fidelity bond or insurance
policy shall in no event be terminated or materially modified without thirty
days’ prior written notice to the Purchaser.
Exh
9-9
Subsection
11.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the person designated by the Purchaser, or in the event such person
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an opinion of counsel obtained by the Servicer from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Seller shall either itself or through an agent selected by the Seller, manage,
conserve, protect and operate each REO Property (and may temporarily rent the
same) 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. If a REMIC
election is or is to be made with respect to the arrangement under which the
Mortgage Loans and any REO Property are held, the Seller shall manage, conserve,
protect and operate each REO Property in a manner which does not cause such
REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by such REMIC of
any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the Code. The Seller
shall cause each REO Property to be inspected promptly upon the acquisition
of
title thereto and shall cause each REO Property to be inspected at least monthly
thereafter. The Seller shall make or cause to be made a written report of each
such inspection. Such reports shall be retained in the Mortgage File and copies
thereof shall be forwarded by the Seller to the Purchaser. The Seller shall
use
its best efforts to dispose of the REO Property as soon as possible and shall
sell such REO Property in any event within one year after title has been taken
to such REO Property, unless the Seller determines, and gives appropriate notice
to the Purchaser, that a longer period is necessary for the orderly liquidation
of such REO Property. If a period longer than one year is necessary to sell
any
REO property, (i) the Seller shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage shall name the Seller as mortgagee,
and
a separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money mortgage. Notwithstanding
the
foregoing, if a REMIC election is made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, such REO Property shall
be disposed of before the close of the third taxable year following the taxable
year in which the Mortgage Loan became an REO Property, unless the Seller
provides to the trustee under such REMIC an opinion of counsel to the effect
that the holding of such REO Property subsequent to the close of the third
taxable year following the taxable year in which the Mortgage Loan became an
REO
Property, will not result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code, or cause the transaction
to fail to qualify as a REMIC at any time that certificates are outstanding.
Seller shall manage, conserve, protect and operate each such REO Property for
the certificateholders solely for the purpose of its prompt disposition and
sale
in a manner which does not cause such property to fail to qualify as
"foreclosure property" within the meaning of Section 860F(a)(2)(E) of the Code,
or any "net income from foreclosure property" which is subject to taxation
under
the REMIC provisions of the Code. Pursuant to its efforts to sell such property,
the Seller shall either itself or through an agent selected by Seller, protect
and conserve such property in the same manner and to such an extent as is
customary in the locality where such property is located. Additionally, Seller
shall perform the tax withholding and reporting related to Sections 1445 and
6050J of the Code.
Exh
9-10
With
respect to each REO Property, the Seller shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall establish
and
maintain a separate REO Account for each REO Property in the form of a
non-interest bearing demand account, unless an Opinion of Counsel is obtained
by
the Seller to the effect that the classification as a grantor trust or REMIC
for
federal income tax purposes of the arrangement under which the Mortgage Loans
and the REO Property is held will not be adversely affected by holding such
funds in another manner. Each REO Account shall be established with the Seller
or, with the prior consent of the Purchaser, with a commercial bank, a mutual
savings bank or a savings association. The creation of any REO Account shall
be
evidenced by a letter agreement substantially in the form of the Custodial
Account Letter Agreement attached as Exhibit 7 hereto. An original of such
letter agreement shall be furnished to any Purchaser upon request.
The
Seller shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Subsection 11.10 hereof and the fees of any managing
agent
acting on behalf of the Seller. The Seller shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Determination Date, the Seller shall withdraw from each REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
The
Seller shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such other
information as the Purchaser shall reasonably request. Together with such
statement, the Seller shall furnish to the Purchaser a statement covering the
Seller’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.
Exh
9-11
Each
REO
Disposition shall be carried out by the Seller at such price and upon such
terms
and conditions as the Seller deems to be in the best interest of the Purchaser
only with the prior written consent of the Purchaser. If as of the date title
to
any REO Property was acquired by the Seller there were outstanding unreimbursed
Servicing Advances with respect to the REO Property, the Servicer, upon an
REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances from proceeds received in connection
with such REO Disposition. The proceeds from the REO Disposition, net of any
payment to the Seller as provided above, shall be deposited in the REO Account
and shall be transferred to the Custodial Account on the Determination Date
in
the month following receipt thereof for distribution on the succeeding
Distribution Date in accordance with Subsection 11.14.
Subsection
11.14 Distributions.
On
each
Distribution Date, the Servicer shall distribute to the Purchaser all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Subsection 11.05.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the
Mortgage Loans owned and held by the Purchaser, and shall be made by wire
transfer of immediately available funds to the account of the Purchaser at
a
bank or other entity having appropriate facilities therefor, if the Purchaser
shall have so notified the Servicer or by check mailed to the address of the
Purchaser.
With
respect to any remittance received by the Purchaser on or after the second
Business Day following the Business Day on which such payment was due, the
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the rate of interest as is publicly announced from time
to
time at its principal office by JPMorgan Chase Bank, New York, New York, as
its
prime lending rate, adjusted as of the date of each change, plus three (3)
percentage points, but in no event greater than the maximum amount permitted
by
applicable law. Such interest shall be paid by the Servicer to the Purchaser
on
the date such late payment is made and shall cover the period commencing with
the 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 such late payment. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of
Default by the Servicer.
Exh
9-12
Subsection
11.15 Remittance
Reports.
No
later
than the fifth Business Day of each month, the Servicer shall furnish to the
Purchaser or its designee an electronic file containing, and a hard copy of,
the
monthly data (the “Remittance Report”). On the Business Day following each
Determination Date, the Servicer shall deliver to the Purchaser or its designee
by telecopy (or by such other means as the Servicer and the Purchaser may agree
from time to time) an electronic file containing, and a hard copy of, the
determination data with respect to the related Distribution Date, together
with
such other information with respect to the Mortgage Loans as the Purchaser
may
reasonably require to allocate distributions made pursuant to this Agreement
and
provide appropriate statements with respect to such distributions. On the same
date, the Servicer shall forward to the Purchaser by overnight mail a computer
readable magnetic tape containing the information set forth in the Remittance
Report with respect to the related Distribution Date. To the extent that the
Mortgage Loans are the subject of a Pass-Through Transfer, the electronic file
must include all information known or available to the Servicer that is
necessary in order to provide the distribution and pool performance information
as required under Item 1121 of Regulation AB as determined by Purchaser in
its
sole discretion. The Servicer shall modify the electronic file as requested
by
the Purchaser from time to time to comply with the preceding
sentence.
Subsection
11.16 Statements
to the Purchaser.
Not
later
than fifteen (15) days after each Distribution Date, the Servicer shall forward
to the Purchaser or its designee a statement prepared by the Servicer setting
forth the status of the Custodial Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Custodial Account
of
each category of deposit specified in Subsection 11.04 and each category of
withdrawal specified in Subsection 11.05, and such statement shall also include
the following:
(i) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any Prepayment
Charges, along with a detailed report of interest on principal prepayment
amounts remitted in accordance with Subsection 11.04);
(ii) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) with
respect to each Mortgage Loan, the amount of servicing compensation received
by
the Servicer during the prior distribution period;
(iv) the
Stated Principal Balance of each Mortgage Loan and the aggregate Stated
Principal Balance of all Mortgage Loans as of the first day of the distribution
period and the last day of the distribution period;
(v) with
respect to each Mortgage Loan, the current Mortgage Interest Rate;
Exh
9-13
(vi) with
respect to each Mortgage Loan, the aggregate amount of any Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Disposition Proceeds
received during the prior distribution period;
(vii) with
respect to each Mortgage Loan, the amount of any prepayment interest shortfalls
paid by the Servicer during the prior distribution period;
(viii) the
beginning and ending balances of the Custodial Account and Escrow
Account;
(ix) the
number of Mortgage Loans as of the first day of the distribution period and
the
last day of the distribution period;
(x) with
respect to each Mortgage Loan, the Stated Principal Balance of each Mortgage
Loan (a) delinquent as grouped in the following intervals through final
liquidation of such Mortgage Loan: 30 to 59 days, 60 to 89 days, 90 days or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(xi) with
respect to each Mortgage Loan, the amount and severity of any realized loss
following liquidation of such Mortgage Loan;
(xii) with
respect to any Mortgage Loan, a description of any material modifications,
extensions or waivers to the terms, fees, penalties or payments of such Mortgage
Loan during the prior distribution period or that have cumulatively become
material over time;
(xiii) a
description of any material breach of a representation or warranty set forth
in
Subsections 7.01 or 7.02 herein or of any other breach of a covenant or
condition contained herein and the status of any resolution of such
breach;
(xiv) with
respect to each Mortgage Loan, the Stated Principal Balance of any substitute
Mortgage Loan provided by the Servicer and the Stated Principal Balance of
any
Mortgage Loan that has been replaced by a substitute Mortgage Loan in accordance
with Subsection 7.04; and
(xv) with
respect to each Mortgage Loan, the Stated Principal Balance of any Mortgage
Loan
that has been repurchased by the Servicer in accordance with Subsection
7.05.
In
addition, not more than 60 days after the end of each calendar year, the
Servicer shall furnish to each Person who was the Purchaser at any time during
such calendar year, (i) as to the aggregate of remittances for the applicable
portion of such year, an annual statement in accordance with the requirements
of
applicable federal income tax law, and (ii) listing of the principal balances
of
the Mortgage Loans outstanding at the end of such calendar year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to any Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the Servicer shall
provide the Purchaser with such information concerning the Mortgage Loans as
is
necessary for the Purchaser to prepare its federal income tax return as any
Purchaser may reasonably request from time to time.
Exh
9-14
Subsection
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Subsection 11.02, with respect to
any
REO Property, the Servicer shall furnish to the Purchaser a statement covering
the Servicer’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, together with the operating statement. Such statement shall be
accompanied by such other information as the Purchaser shall reasonably
request.
Subsection
11.18 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 Servicer shall submit
to the Purchaser a liquidation report with respect to such Mortgaged
Property.
Subsection
11.19 Assumption
Agreements.
The
Servicer shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause applicable thereto; provided, however, that the Servicer shall not
exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall enter into an assumption agreement with
the person to whom the Mortgaged Property has been conveyed or is proposed
to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Subsection
11.19, the Servicer is authorized to enter into a substitution of liability
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is located. With
respect to an assumption or substitution of liability, Mortgage Interest Rate,
the amount of the Monthly Payment, and the final maturity date of such Mortgage
Note may not be changed. The Servicer shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Servicer for entering into an assumption
or
substitution of liability agreement in excess of 1% of the outstanding principal
balance of the Mortgage Loan shall be deposited in the Custodial Account
pursuant to Subsection 11.04.
Exh
9-15
Notwithstanding
the foregoing paragraphs of this Subsection or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of
a
Mortgage Loan by operation of law or any assumption which the Servicer may
be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Subsection 11.19, the term “assumption” is deemed to also include a sale of
the Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Subsection
11.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Purchaser by a
certification of a servicing officer of the Servicer (a “Servicing Officer”),
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to
be deposited in the Custodial Account pursuant to Subsection 11.04 have been
or
will be so deposited, and shall request execution of any document necessary
to
satisfy the Mortgage Loan and delivery to it of the portion of the Mortgage
File
held by the Purchaser or the Purchaser’s designee. Upon receipt of such
certification and request, the Purchaser, shall promptly release the related
mortgage documents to the Servicer and the Servicer shall prepare and process
any satisfaction or release. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account or the Purchaser.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Servicer, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by deposit
thereof in the Custodial Account. The Servicer shall maintain the fidelity
bond
insuring the Servicer against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, the Purchaser shall, upon request of the Servicer and delivery to the
Purchaser of a servicing receipt signed by a Servicing Officer, release the
requested portion of the Mortgage File held by the Purchaser or the Custodian
to
the Servicer. Such servicing receipt shall obligate the Servicer to return
the
related Mortgage documents to the Purchaser when the need therefor by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or the Mortgage File or such document has been delivered
to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for
the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
the Servicer has delivered to the Purchaser a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated, the servicing receipt shall be released by the Purchaser
to
the Servicer.
Exh
9-16
Subsection
11.21 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall, subject to
Subsection 11.04(xi), be entitled to withdraw from the Custodial Account or
to
retain from interest payments on the Mortgage Loans the amounts provided for
as
the Servicer’s Servicing Fee. Additional servicing compensation in the form of
assumption fees, as provided in Subsection 11.19, and late payment charges
and
similar ancillary servicing compensation shall be retained by the Servicer
to
the extent not required to be deposited in the Custodial Account. The Servicer
shall not be permitted to retain any portion of the Prepayment Charges collected
on the Mortgage Loans, which Prepayment Charges shall be remitted to the
Purchaser. The Servicer shall be required to pay all expenses incurred by it
in
connection with its servicing activities hereunder and shall not be entitled
to
reimbursement therefor except as specifically provided for.
Subsection
11.22 Notification
of Adjustments.
On
each
Adjustment Date, the Servicer shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note. The Servicer shall execute and deliver the notices
required by each Mortgage and Mortgage Note regarding interest rate adjustments.
The Servicer also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments and
the
Servicer’s methods of implementing such interest rate adjustments. Upon the
discovery by the Servicer or the Purchaser that the Servicer has failed to
adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms
of
the related Mortgage Note and Mortgage, the Servicer shall immediately deposit
in the Custodial Account from its own funds the amount of any interest loss
caused thereby without reimbursement therefor.
Subsection
11.23 Annual
Statement as to Compliance.
(a) The
Servicer will deliver to the Purchaser, not later than March 1 of each fiscal
year, beginning in 2007, an Officers’ Certificate (an “Annual Statement of
Compliance”) stating, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding year and of performance under
this Agreement or other applicable servicing agreement has been made under
such
officer’s supervision and (ii) to the best of such officer’s knowledge, based on
such review, the Servicer has fulfilled all of its obligations under this
Agreement or other applicable servicing agreement throughout such year, or,
if
there has been a failure to fulfill any such obligation, specifying each such
failure known to such officer and the nature and status thereof. Copies of
such
statement shall be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans. The Purchaser shall notify the
Servicer prior to providing any such copies. In the event that the Servicer
has
delegated any servicing responsibilities with respect to the Mortgage Loans
to a
subservicer, the Servicer shall deliver an officer’s certificate of the
subservicer as described above as to each subservicer as and when required
with
respect to the Servicer.
Exh
9-17
(b) The
Servicer shall indemnify and hold harmless the Master Servicer, the Depositor,
the Purchaser (and if this Agreement has been assigned in whole or in part
by
the Purchaser, any and all Persons previously acting as “Purchaser” hereunder),
and their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Servicer or any of its officers,
directors, agents or affiliates of its obligations under this Section 11.23
or
Section 11.24, or the negligence, bad faith or willful misconduct of the
Servicer in connection therewith. If the indemnification provided for herein
is
unavailable or insufficient to hold harmless any Indemnified Party, then the
Servicer agrees that it shall contribute to the amount paid or payable by the
Indemnified Party as a result of the losses, claims, damages or liabilities
of
the Indemnified Party in such proportion as is appropriate to reflect the
relative fault of the Indemnified Party on the one hand and the Servicer in
the
other in connection with a breach of the Servicer’s obligations under this
Section 11.23 or Section 11.24, or the Servicer’s negligence, bad faith or
willful misconduct in connection therewith.
Subsection
11.24 Annual
Independent Certified Public Accountants’ Servicing Report.
Not
later
than March 1 of each fiscal year, beginning in 2007, the Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Servicer) which is a member of the American Institute
of
Certified Public Accountants to furnish a report (a “USAP Report”) relating to
the Interim Servicing Period to the Purchaser or its designee to the effect
that
such firm has examined certain documents and records relating to the servicing
of the Mortgage Loans under this Agreement or of mortgage loans under pooling
and servicing agreements (including the Mortgage Loans and this Agreement)
substantially similar one to another (such statement to have attached thereto
a
schedule setting forth the pooling and servicing agreements covered thereby)
and
that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers, such firm
confirms that such servicing has been conducted in compliance with such pooling
and servicing agreements examined pursuant to this Section 11.25 during the
preceding fiscal year, except for (i) such exceptions as such firm shall believe
to be immaterial, and (ii) such other exceptions as shall be set forth in such
USAP Report. Such USAP Report shall contain no restrictions or limitations
on
its use. Copies of such USAP Reports shall be provided by the Servicer to the
Purchaser. In addition, on an annual basis, the Servicer shall provide the
Purchaser with copies of its audited financial statements.
Subsection
11.25 Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC and any
other federal or state banking or insurance regulatory authority that may
exercise authority over the Purchaser access to the documentation regarding
the
Mortgage Loans serviced by the Servicer required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer. In addition, access to the documentation will be provided to the
Purchaser and any Person identified to the Servicer by the Purchaser without
charge, upon reasonable request during normal business hours at the offices
of
the Servicer.
Exh
9-18
Subsection
11.26 Servicing
Transfer.
At
the
end of the Interim Servicing Period, the Initial Purchaser, or its designee,
shall assume all servicing responsibilities related to the Mortgage Loans and
the Servicer shall cease all servicing responsibilities related to the Mortgage
Loans. During the Interim Servicing Period, the Servicer shall, at its cost
and
expense, take such steps as may be necessary or appropriate to effectuate and
evidence the transfer of the servicing of the related Mortgage Loans to the
Initial Purchaser, or its designee. The Servicer and the Seller agree to execute
and deliver such instruments and take such actions as the Initial Purchaser,
or
its designee, may from reasonably request from time to time to carry out the
servicing transfer.
Subsection
11.27 Reports
and Returns to be Filed by the Servicer.
During
the Interim Servicing Period, the Servicer shall file information reports with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property as required by Sections 6050H, 6050J and 6050P of
the
Code. Such reports shall be in form and substance sufficient to meet the
reporting requirements imposed by such Sections 6050H, 6050J and 6050P of the
Code.
Subsection
11.28 Superior
Liens.
With
respect to each second lien Mortgage, the Seller shall, for the protection
of
the Purchaser's interest, file (or cause to be filed) of record a request for
notice of any action by a superior lienholder where permitted by local law
and
whenever applicable state law does not require that a junior lienholder be
named
as a party defendant in foreclosure proceedings in order to foreclose such
junior lienholder's equity of redemption. The Seller shall also notify any
superior lienholder in writing of the existence of the Mortgage Loan and request
notification of any action (as described below) to be taken against the Borrower
or the Mortgaged Property by the superior lienholder.
If
the
Seller is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Seller shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Internal Revenue Code.
The Seller shall make a Servicing Advance of the funds necessary to cure the
default or reinstate the superior lien if the Seller determines that such
Servicing Advance is in the best interests of the Purchaser. The Seller shall
not make such a Servicing Advance except to the extent that it determines that
such advance would not be a Nonrecoverable Servicing Advance from Liquidation
Proceeds on the related Mortgage Loan. The Seller shall thereafter take such
action as is necessary to recover the amount so advanced.
Exh
9-19
Subsection
11.29 Reserved.
Subsection
11.30. Reserved.
Subsection
11.31 Reserved.
Subsection
11.32 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 Seller shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of
the Code and the tax on “contributions” to a REMIC set forth in
Section 860G(d) of the Code) unless the Seller 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.
Subsection
11.33 Reserved
Subsection
11.34 Reserved.
Exh
9-20
EXHIBIT
10
FORM
OF
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) made
as of _____, 200_, among HSBC Bank, National Association (the “Assignor”),
____________________ (the “Assignee”) [not individually but solely as trustee on
behalf of the holders of the ___________, Series ____, Asset-Backed
Certificates] and Decision One Mortgage Company, LLC (the “Company”).
In
consideration of the mutual promises contained herein the parties hereto agree
that the residential mortgage loans (the “Assigned Loans”) listed on Attachment
1 annexed hereto (the “Assigned Loan Schedule”) purchased by Assignor from
Company pursuant to (a) the Master Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of _____, 200_, between Assignor and Company (the “Purchase
Agreement”), shall be subject to the terms of this AAR Agreement. Capitalized
terms used herein but not defined shall have the meanings ascribed to them
in
the Purchase Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title and
interest of Assignor in the Assigned Loans and, as they relate to the Assigned
Loans, all of its right, title and interest in, to and under the Purchase
Agreement. Assignor specifically reserves and does not assign to Assignee any
right title and interest in, to or under any Mortgage Loans subject to the
Agreements other than those set forth on Attachment l.
Recognition
of the Company
2. [For
Securitization Transactions include this sentence: From and after the date
hereof, the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this AAR Agreement to
______________________________ (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of
_______________, 200__ (the “Pooling
Agreement”),
among
the Assignee as trustee (including its successors in interest and any successor
trustees under the Pooling Agreement), the Assignor and
_________________________, as servicer (including its successors in interest
and
any successor servicer under the Pooling Agreement, the “Servicer”).]
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the [Trust][Assignee] will be the owner of the Mortgage Loans,
(ii) the Company shall look solely to the [Trust][Assignee] for performance
of any obligations of the Assignor insofar as they relate to the enforcement
of
the representations, warranties and covenants with respect to the Mortgage
Loans, (iii) the [Assignee][Trust (including the Assignee and the Servicer
acting on the Trust’s behalf)] shall have all the rights and remedies available
to the Assignor, insofar as they relate to the Mortgage Loans, under the
Purchase Agreement, including, without limitation, the enforcement of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and shall
be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iv) all references to the Purchaser
(insofar as they relate to the rights, title and interest and, with respect
to
obligations of the Purchaser, only insofar as they relate to the enforcement
of
the representations, warranties and covenants of the Company) under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to
refer
to the [Assignee] [Trust (including the Assignee and the Servicer acting on
the
Trust’s behalf)]. Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Assignee.
Exh
10-1
Representations;
Warranties and Covenants
3.
|
Assignor
warrants and represents to Assignee and Company as of the date hereof:
|
a.
|
Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of the
date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been given
thereunder;
|
b.
|
Assignor
is the lawful owner of the Assigned Loans with full right to transfer
the
Assigned Loans and any and all of its interests, rights and obligations
under the Purchase Agreement as they relate to the Assigned Loans,
free
and clear of any and all liens, claims and encumbrances; and upon
the
transfer of the Assigned Loans to Assignee as contemplated herein,
Assignee shall have good title to each and every Assigned Loan, as
well as
any and all of Assignor's interests, rights and obligations under
the
Purchase Agreement as they relate to the Assigned Loans, free and
clear of
any and all liens, claims and
encumbrances;
|
c.
|
Assignor
has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to Company with respect
to the
Assigned Loans or the Purchase
Agreement;
|
d.
|
Assignor
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, and has all
requisite
power and authority to acquire, own and sell the Assigned
Loans;
|
e.
|
Assignor
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor's charter or by-laws or any
legal
restriction, or any material agreement or instrument to which Assignor
is
now a party or by which it is bound, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which Assignor
or its
property is subject. The execution, delivery and performance by Assignor
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary action
on
the part of Assignor. This AAR Agreement has been duly executed and
delivered by Assignor and, upon the due authorization, execution
and
delivery by Assignee and Company, will constitute the valid and legally
binding obligation of Assignor enforceable against Assignor in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors' rights generally, and
by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at
law;
|
Exh
10-2
f.
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignor in connection with the execution, delivery
or
performance by Assignor of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
|
g.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignor's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Assignor, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Assignor's ability to perform its obligations under
this
AAR Agreement.
|
4. Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
date hereof:
a.
|
Assignee
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its organization and has all requisite power
and
authority to acquire and [own] [hold] the Assigned Loans [as trustee
on
behalf of the Trust];
|
b.
|
Assignee
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignee's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's organizational
documentation or
any legal restriction, or any material agreement or instrument to
which
Assignee is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which
Assignee or its property is subject. The execution, delivery and
performance by Assignee of this AAR Agreement and the consummation
by it
of the transactions contemplated hereby, have been duly authorized
by all
necessary action on the part of Assignee. This AAR Agreement has
been duly
executed and delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and Company, will constitute the
valid
and legally binding obligation of Assignee enforceable against Assignee
in
accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws
now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
|
Exh
10-3
c.
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignee in connection with the execution, delivery
or
performance by Assignee of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
|
d.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignee's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Assignee's ability to perform its obligations under
this
AAR Agreement.
|
5. Company
warrants and represents to, and covenants with, Assignor and Assignee as of
the
date hereof:
a.
|
Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of the
date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been given
thereunder;
|
b.
|
Company
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to perform its obligations under the Purchase Agreement;
|
c.
|
Company
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s organizational documentation or any
legal restriction, or any material agreement or instrument to which
Company is now a party or by which it is bound, or result in the
violation
of any law, rule, regulation, order, judgment or decree to which
Company
or its property is subject. The execution, delivery and performance
by
Company of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary action on the part of Company. This AAR Agreement has been
duly
executed and delivered by Company, and, upon the due authorization,
execution and delivery by Assignor and Assignee, will constitute
the valid
and legally binding obligation of Company, enforceable against Company
in
accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws
now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
|
Exh
10-4
d.
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Company in connection with the execution, delivery or performance
by Company of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
|
e.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Company's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Company, would adversely affect
Company's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Company's ability to perform its obligations under
this
AAR Agreement; and
|
f.
|
Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee [and the
Trust,]
that the representations and warranties set forth in Subsections
7.01 and
7.02 of the Purchase Agreement, are true and correct as of the date
hereof
(except for the representations and warranties set forth in Subsections
7.02 (xviii), (xix), (xxiii) and (xxxiv) of the Purchase Agreement,
which
the Company hereby represents and warrants are true and correct as
of the
Servicing Transfer Date), except that the representation and warranty
set
forth in Section 7.02(i) shall, for purposes of this AAR Agreement,
relate
to the Mortgage Loan Schedule attached
hereto.
|
[Additional
Representations and Warranties Necessary for Securitization]
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee [and the Trust (including the Assignee and the Servicer
acting on the Trust’s behalf)] in connection with any breach of the
representations and warranties made by the Company set forth in Section 4 hereof
shall be as set forth in Subsection 7.03 of the Purchase Agreement as if they
were set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein).
Exh
10-5
7. [Notwithstanding
any term hereof to the contrary, the execution and delivery of this AAR
Agreement by the Assignee is solely in its capacity as trustee for the Trust
and
not individually, and any recourse against the Assignee in respect of any
obligations it may have under or pursuant to the terms of this AAR Agreement
shall be limited solely to the assets it may hold as trustee of the Trust.]
Miscellaneous
8. All
demands, notices and communications related to the Assigned Loans, the
Agreements and this AAR Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a.
|
In
the case of Company,
|
Decision
One Mortgage Company, LLC
0000 XXXX
Xxx
Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attn: [_____________]
b.
|
In
the case of Assignor,
|
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
[__________]
c. In the
case
of Assignee,
[Assignee]
________________
________________,
____________ _____
Attn: _____________
9. This
AAR
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
10. No
term
or provision of this AAR Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
11. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may be
merged or consolidated shall without the requirement for any further writing,
be
deemed Assignor, Assignee or Company, respectively hereunder.
Exh
10-6
12. This
AAR
Agreement shall survive the conveyance of the Assigned Loans as contemplated
in
this AAR Agreement.
13. This
AAR
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
14. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of this
AAR
Agreement shall control.
Exh
10-7
IN
WITNESS WHEREOF,
the
parties hereto have executed this AAR Agreement as of the day and year first
above written.
HSBC
BANK
USA, NATIONAL ASSOCIATION
Assignor
By:
____________________________
Name:
Title:
[ASSIGNEE]
By:
____________________________
Name:
Title:
DECISION
ONE MORTGAGE COMPANY, LLC
Company
By:
____________________________
Name:
__________________________
Title:
___________________________
Xxx
00-0
XXXXXXXXXX
l
ASSIGNED
LOAN SCHEDULE
Xxx
00-0
XXXXXXXXXX
0
XXXXXXXX
XXXXXXXXX
Xxx
10-10
EXHIBIT
11
RESERVED
Exh
11-1
EXHIBIT
12
RESERVED
Exh
12-1
EXHIBIT
13
MORTGAGE
LOAN DOCUMENTS
(a)
|
the
original Mortgage Note bearing all intervening endorsements necessary
to
show a complete chain of endorsements from the original payee, endorsed
in
blank, “Pay to the order of _____________, without recourse”, and, if
previously endorsed, signed in the name of the last endorsee by a
duly
qualified officer of the last endorsee. If the Mortgage Loan was
acquired
by the last endorsee in a merger, the endorsement must be by “[name of
last endorsee], successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the last endorsee while
doing
business under another name, the endorsement must be by “[name of last
endorsee], formerly known as [previous
name]”;
|
(b)
|
the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Mortgage shall be assigned,
with
assignee's name left blank. If the Mortgage Loan was acquired by
the last
assignee in a merger, the Assignment of Mortgage must be made by
“[name of
last assignee], successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the last assignee while
doing
business under another name, the Assignment of Mortgage must be by
“[name
of last assignee], formerly known as [previous
name];
|
(c)
|
the
original of each guarantee executed in connection with the Mortgage
Note,
if any;
|
(d)
|
the
original recorded Mortgage, with evidence of recording thereon. If
in
connection with any Mortgage Loan, the Seller has not delivered or
caused
to be delivered the original Mortgage with evidence of recording
thereon
on or prior to the related Closing Date because of a delay caused
by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such
public
recording office retains the original recorded Mortgage, the Seller
shall
deliver or cause to be delivered to the Custodian, (i) in the case
of a
delay caused by the public recording office, a copy of such Mortgage
certified by the Seller, escrow agent, title insurer or closing attorney
to be a true and complete copy of the original recorded Mortgage
and (ii)
in the case where a public recording office retains the original
recorded
Mortgage or in the case where a Mortgage is lost after recordation
in a
public recording office, a copy of such Mortgage certified by such
public
recording office to be a true and complete copy of the original recorded
Mortgage;
|
Exh
13-1
(e)
|
originals
or a certified copy of each modification agreement, if
any;
|
(f)
|
the
originals of all intervening assignments of mortgage with evidence
of
recording thereon evidencing a complete chain of ownership from the
originator of the Mortgage Loan to the last assignee, or if any such
intervening assignment of mortgage has not been returned from the
applicable public recording office or has been lost or if such public
recording office retains the original recorded intervening assignments
of
mortgage, a photocopy of such intervening assignment of mortgage,
together
with (i) in the case of a delay caused by the public recording office,
an
Officer's Certificate of the Seller, escrow agent, closing attorney
or the
title insurer insuring the Mortgage stating that such intervening
assignment of mortgage has been delivered to the appropriate public
recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian
upon
receipt thereof by the party delivering the Officer's Certificate
or by
the Seller; or (ii) in the case of an intervening assignment of mortgage
where a public recording office retains the original recorded intervening
assignment of mortgage or in the case where an intervening assignment
of
mortgage is lost after recordation in a public recording office,
a copy of
such intervening assignment of mortgage with recording information
thereon
certified by such public recording office to be a true and complete
copy
of the original recorded intervening assignment of
mortgage;
|
(g)
|
if
the Mortgage Note, the Mortgage, any Assignment of Mortgage or any
other
related document has been signed by a Person on behalf of the Mortgagor,
the copy of the power of attorney or other instrument that authorized
and
empowered such Person to sign;
|
(h)
|
the
original lender's title insurance policy (or a marked title insurance
commitment, in the event that an original lender’s title insurance policy
has not yet been issued) in the form of an ALTA mortgage title insurance
policy, containing each of the endorsements required by prudent mortgage
lending institutions in the secondary mortgage market and insuring
the
Purchaser and its successors and assigns as to the first priority
lien of
the Mortgage in the original principal amount of the Mortgage Loan;
and
|
(i)
|
original
of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if
any.
|
Exh
13-2
EXHIBIT
14
UNDERWRITING
GUIDELINES
Exh
14-1
EXHIBIT
15
RESERVED
Exh
15-1
EXHIBIT
16
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit 16 is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit 16 and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other public
statements of the SEC shall control.
Item
1105(a)(1)-(3) and (c)
-Provide
static pool information with respect to mortgage loans that were originated
or
purchased by the Seller and which are of the same type as the Mortgage
Loans.
-Provide
static pool information regarding delinquencies, cumulative losses and
prepayments for prior securitized pools of the Seller.
-If
the
Seller has less than 3 years experience securitizing assets of the same type
as
the Mortgage Loans, provide the static pool information by vintage origination
years regarding loans originated or purchased by the Seller, instead of by
prior
securitized pool. A vintage origination year represents mortgage loans
originated during the same year.
-Such
static pool information shall be for the prior five years, or for so long as
the
Seller has been originating or purchasing (in the case of data by vintage
origination year) or securitizing (in the case of data by prior securitized
pools) such mortgage loans if for less than five years.
-The
static pool information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in monthly increments over the life
of
the mortgage loans included in the vintage origination year or prior securitized
pool.
-Provide
summary information for the original characteristics of the prior securitized
pools or vintage origination years, as applicable and material, including:
number of pool assets, original pool balance, weighted average initial loan
balance, weighted average mortgage rate, weighted average and minimum and
maximum FICO, product type, loan purpose, weighted average and minimum and
maximum LTV, distribution of loans by mortgage rate, and geographic
concentrations of 5% or more.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Servicer’s form of organization;
-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 mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Servicer that
may
be material to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including whether any default
or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Servicer, whether any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Servicer, and the extent
of
outsourcing the Servicer uses;
Exh
16-1
-a
description of any material changes to the Servicer’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Servicer’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance of
the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as the
Mortgage Loans, and the Servicer’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Servicer
on
the Mortgage Loans and the Servicer’s overall servicing portfolio for the past
three years; and
-the
Servicer’s process for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of REO Properties, foreclosure, sale
of
the Mortgage Loans or workouts.
Item
1110(a)
-Identify
any originator or group of affiliated originators that originated, or are
expected to originate, 10% or more of the mortgage loans in any loan group
in
the securitization issued in the Pass-Through Transfer.
Item
1110(b)
Provide
the following information with respect to any originator or group of affiliated
originators that originated, or is expected to originate, 20% or more of the
mortgage loans in any loan group in the securitization issued in the
Pass-Through Transfer:
-the
Seller’s form of organization; and
-a
description of the Seller’s origination program and how long the Seller has been
engaged in originating residential mortgage loans, which description must
include a discussion of the Seller’s experience in originating mortgage loans of
the same type as the Mortgage Loans and information regarding the size and
composition of the Seller’s origination portfolio as well as information that
may be material to an analysis of the performance of the Mortgage Loans, such
as
the Seller’s credit-granting or underwriting criteria for mortgage loans of the
same type as the Mortgage Loans.
Exh
16-2
Item
1117
-describe
any legal proceedings pending against the Seller and Servicer or against any
of
their respective property, including any proceedings known to be contemplated
by
governmental authorities, that may be material to the holders of the securities
issued in the Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Servicer, each other originator of the Mortgage Loans
and each Subservicer with the sponsor, depositor, issuing entity, trustee,
any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Seller, Servicer, each other
originator of the Mortgage Loans and each Subservicer, or their respective
affiliates, and the sponsor, depositor or issuing entity or their respective
affiliates, that exists currently or has existed during the past two years,
that
may be material to the understanding of an investor in the securities issued
in
the Pass-Through Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Seller, Servicer, each other originator of the Mortgage Loans and each
Subservicer, or their respective affiliates and the sponsor, depositor or
issuing entity or their respective affiliates, that exists currently or has
existed during the past two years.
Exh
16-3
EXHIBIT
17
RESERVED
Exh
17-1