MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT OPTEUM FINANCIAL SERVICES, LLC
OPTEUM
FINANCIAL SERVICES,
LLC
Seller
and Servicer
CITIGROUP
GLOBAL MARKETS REALTY CORP.
Initial
Purchaser
Dated
as
of September 1, 2006
Fixed
and
Adjustable Rate
First
and
Second Lien Mortgage Loans
TABLE
OF
CONTENTS
|
SECTION
1.
|
Definitions
|
|
|
SECTION
2.
|
Agreement
to Purchase
|
|
|
SECTION
3.
|
Mortgage
Loan Schedules
|
|
|
SECTION
4.
|
Purchase
Price
|
|
|
SECTION
5.
|
Examination
of Mortgage Files
|
|
|
SECTION
6.
|
Conveyance
from Seller to Initial Purchaser.
|
|
|
Subsection
6.01.
|
Conveyance
of Mortgage Loans; Possession of Servicing Files.
|
|
|
Subsection
6.02.
|
Books
and Records.
|
|
|
Subsection
6.03.
|
Delivery
of Mortgage Loan Documents.
|
|
|
SECTION
7.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
|
|
Subsection
7.01.
|
Representations
and Warranties Respecting the Seller.
|
|
|
Subsection
7.02.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
|
|
Subsection
7.03.
|
Remedies
for Breach of Representations and Warranties.
|
|
|
Subsection
7.04.
|
Prepayment-in-Full
Premium Recapture.
|
|
|
Subsection
7.05.
|
Early
Payment Default.
|
|
|
SECTION
8.
|
Closing
|
|
|
SECTION
9.
|
Closing
Documents.
|
|
|
SECTION
10.
|
Costs
|
|
|
SECTION
11.
|
Seller’s
Servicing Obligations
|
|
|
SECTION
12.
|
Removal
of Mortgage Loans from Inclusion under This
Agreement Upon a Whole Loan Transfer or
a Securitization Transaction on One or
More Reconstitution Dates.
|
|
|
SECTION
13.
|
The
Seller.
|
|
|
Subsection
13.01.
|
Additional
Indemnification by the Seller.
|
|
|
Subsection
13.02.
|
Merger
or Consolidation of the Seller.
|
|
|
Subsection
13.03.
|
Limitation
on Liability of the Seller and Others.
|
|
|
Subsection
13.04.
|
Seller
Not to Resign.
|
|
|
Subsection
13.05.
|
No
Transfer of Servicing.
|
|
|
SECTION
14.
|
DEFAULT.
|
|
|
Subsection
14.01.
|
Events
of Default.
|
|
|
Subsection
14.02.
|
Waiver
of Defaults.
|
|
|
SECTION
15.
|
Termination
|
|
|
SECTION
16.
|
Successor
to the Seller
|
|
|
SECTION
17.
|
Financial
Statements
|
|
|
SECTION
18.
|
Mandatory
Delivery: Grant of Security Interest
|
|
|
SECTION
19.
|
Notices
|
|
|
SECTION
20.
|
Severability
Clause
|
|
|
SECTION
21.
|
Counterparts
|
|
|
SECTION
22.
|
Governing
Law
|
|
|
SECTION
23.
|
Intention
of the Parties
|
|
|
SECTION
24.
|
Successors
and Assigns
|
|
|
SECTION
25.
|
Waivers
|
|
|
SECTION
26.
|
Exhibits
|
|
|
SECTION
27.
|
General
Interpretive Principles
|
|
|
SECTION
28.
|
Nonsolicitation
|
|
|
SECTION
29.
|
Reproduction
of Documents
|
|
|
SECTION
30.
|
Further
Agreements
|
|
|
SECTION
31.
|
Entire
Agreement.
|
|
|
SECTION
32.
|
Third
Party Beneficiary
|
|
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
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
7
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
8
|
SERVICING
ADDENDUM
SCHEDULE
A – SURVEILLANCE DATA
|
|
EXHIBIT
9
|
FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
|
|
EXHIBIT
10
|
FORM
OF INDEMNIFICATION AGREEMENT
|
|
EXHIBIT
11
|
FORM
OF ANNUAL CERTIFICATION
|
|
EXHIBIT
12
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
This
is a
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the “Agreement”), dated
as of September 1, 2006, by and between Citigroup Global Markets Realty Corp.,
having an office at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx,
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”) and Opteum Financial
Services, LLC, having an office at W. 000 Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx
00000 (the “Seller”).
WITNESSETH
:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first and second lien
mortgage loans, including the right to any Prepayment Charges payable by the
related Mortgagors as described herein (the “Mortgage Loans”), on a
servicing-retained basis, and which shall be delivered in groups of whole loans
on various dates as provided 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 to the related Assignment and
Conveyance on each Closing Date as Schedule One;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer 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.
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 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 Xxxxxx Xxx and Xxxxxxx Mac 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 Xxxxxx Mae and Xxxxxxx Mac 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 MOM 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 New Jersey or the State of New
York are authorized or obligated by law or executive order to be
closed.
Buydown
Agreement: An agreement between the Seller and a Mortgagor, or an
agreement among the Seller, a Mortgagor and a seller of a Mortgaged Property
or
a third party with respect to a Mortgage Loan which provides for the application
of Buydown Funds.
Buydown
Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, the Seller or any other source, plus interest
earned thereon, in order to enable the Mortgagor to reduce the payments required
to be made from the Mortgagor’s funds in the early years of a Mortgage
Loan.
Buydown
Mortgage Loan: Any Mortgage Loan in respect of which, pursuant to
a Buydown Agreement, (i) the Mortgagor pays less than the full monthly payments
specified in the Mortgage Note for a specified period and (ii) the difference
between the payments required under such Buydown Agreement and the Mortgage
Note
is provided from Buydown Funds.
Buydown
Period: The period of time when a Buydown Agreement is in effect
with respect to a related Buydown Mortgage Loan.
Cash-Out
Refinancing: A Refinanced Mortgage Loan the proceeds of which
were in excess of the principal balance of any existing first and second
mortgage on the related Mortgaged Property and related closing costs, and were
used to pay any such existing first and second mortgage, related closing costs
and subordinate mortgages on the related Mortgaged Property.
Closing
Date: The date or dates on which the Purchaser, from time to time, shall
purchase and the Seller, from time to time, shall sell to the Purchaser, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the
related Mortgage Loan Package.
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 Second
Lien Mortgage Loan, the fraction, expressed as a percentage, the numerator
of
which is the sum of (a) the original principal balance of the Mortgage Loan,
plus (b) the unpaid principal balance of any related senior mortgage loan or
loans secured by the Mortgaged Property, and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property 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
purchase price and terms letter agreement between the Purchaser 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 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.
Credit
Score: The credit score of the Mortgagor provided by Fair, Xxxxx &
Company, Inc. or such other organization providing credit scores at the
time of
the origination of a Mortgage Loan. If two credit scores are
obtained, the Credit Score shall be the lower of the two credit
scores. If three credit scores are obtained, the Credit Score shall
be the middle of the three credit scores.
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 “Opteum Financial Services, LLC, 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.
Cut-off
Date: The first day of the month in which the related Closing Date occurs,
or as otherwise set forth in the related Confirmation.
Data
File: The data file provided by the Seller to the Purchaser in
connection with the Mortgage Loans to be purchased on the related Closing
Date.
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
Securitization Transaction.
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: With respect to any Distribution Date prior to a
Securitization Transaction with respect to the Mortgage Loans, 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, and with respect to any Distribution
Date
following a Securitization Transaction with respect to the Mortgage Loans,
the
twenty-first (21st) day of
each
month, commencing on the twenty-first day of the month next following the month
in which the related Cut-off Date occurs, or if such twenty-first (21st) day is
not a
Business Day, the first Business Day immediately preceding such twenty-first
(21st)
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.
Due
Period: With respect to each Distribution Date, the period commencing on the
second day of the month preceding the month of the Distribution Date and ending
on the first day of the month of the Distribution Date.
Eligible
Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company that (a)
is
incorporated under the laws of the United States of America or any state
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has or is a subsidiary of a holding company that
has
an outstanding unsecured commercial paper or other short-term unsecured debt
obligations that are rated A-1 by S&P or Prime-1 by Moody’s (or a comparable
rating if another rating agency is specified by the Initial Purchaser by written
notice to the Seller) 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 the corporate trust department
of 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 “Opteum Financial Services,
LLC, 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, Primary Insurance Policy premiums,
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 15.01.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx
Mae: Xxxxxx Xxx or any successor thereto.
FDIC:
The Federal Deposit Insurance Corporation, 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 repurchased
by the Seller pursuant to this Agreement), a determination made by the Seller
that all Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and
other payments or recoveries which the Seller, in its reasonable good faith
judgment, expects to be finally recoverable in respect thereof have been so
recovered. The Seller shall maintain records, prepared by a servicing
officer of the Seller, of each Final Recovery Determination.
First
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of trust or other instrument securing a Mortgage Note which creates a
first
lien on the Mortgaged Property.
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.
Xxxxxxx
Mac: Xxxxxxx Mac or any successor 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: Citigroup Global Markets Realty Corp., or any
successor.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Lender
Paid Mortgage Insurance Policy or LPMI Policy: A policy of mortgage
guaranty insurance issued by a Qualified Insurer in which the owner or servicer
of the Mortgage Loan is responsible for the premiums associated with such
mortgage insurance policy.
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 and prior to an REO
Disposition.
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: The Master Servicer with respect to any Securitization
Transaction.
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
Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
Mortgage Identification Number for any MERS Mortgage Loan.
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 as to which MERS is acting 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
Advance: The aggregate of the advances made by the Seller on any
Distribution Date following a Securitization Transaction pursuant to
Subsection 11.21 of Exhibit 8.
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.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
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.
Mortgage
Loan: Each first or second lien residential Mortgage Loan, as set forth in
the related Confirmation, 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 the related Closing Date,
which Mortgage Loan includes without limitation the Mortgage File, the Monthly
Payments, Principal Prepayments, 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 described as the “Mortgage Loan Documents” in
Exhibit 5 annexed hereto pertaining to any Mortgage Loan.
Mortgage
Loan Package: The Mortgage Loans listed on a Mortgage Loan
Schedule, delivered to the Purchaser or its designee at least five (5) Business
Days prior to the related Closing Date and attached to the Assignment and
Conveyance as Schedule One on the related Closing Date.
Mortgage
Loan Schedule: With respect to each Mortgage Loan Package, the
schedule of Mortgage Loans to be annexed to an Assignment and Conveyance as
Schedule One on each Closing Date for the Mortgage Loan Package delivered on
such Closing Date in both hard copy and 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, county, city and zip code; (4) the Cut-off Date;
(5) the type of Residential Dwelling constituting the Mortgaged Property; (6)
the number of units in the related Mortgaged Property; (7) a code indicating
if
the Mortgage Loan is secured by a leasehold estate; (8) a code indicating
whether the Mortgage Loan is a Buydown Mortgage Loan; (9) the Mortgagor’s income
at origination; (10) a code indicating whether the related Mortgagor is
self-employed; (11) a code indicating whether the Mortgaged Property is owner
occupied; (12) a code indicating the Credit Score of the Mortgagor and the
date
such Credit Score was obtained; (13) the Mortgagor’s debt to income ratio; (14)
the Mortgage Loan’s payment history; (15) a code indicating whether the Mortgage
Loan is prime/Alt-A or subprime; (16) the Mortgage Interest Rate at origination;
(17) the current Mortgage Interest Rate; (18) the Net Mortgage Rate; (19) a
code
any step-up in the Servicing Fee; (20) the seasoning (age); (21) the
original months to maturity; (22) the original date of the Mortgage Loan and
the
remaining months to maturity from the Cut-off Date, based on the original
amortization schedule; (23) the Mortgage Interest Rate in effect immediately
following the related Cut-off Date; (24) the product type (e.g., 2/28, 15 year
fixed, 30 year fixed, 15/30, etc.); (25) a code indicating whether the Mortgaged
Property is subject to a First Lien or a Second Lien; (26) a code indicating
whether the Second Lien Mortgage Loan is a simultaneous second and the amount
of
the Second Lien; (27) 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; (28) the interest paid-through date; (29) the stated
maturity date; (30) the amount of the Monthly Payment at origination; (31)
the
amount of the Monthly Payment as of the Cut-off Date; (32) the last Due Date
on
which a Monthly Payment was actually applied to the unpaid Stated Principal
Balance; (33) the Appraised Value of the Mortgaged Property; (34) a code
indicating the form of appraisal (i.e. form 1004, 2055, etc.); (35) the sale
price of the Mortgaged Property, if applicable; (36) the Loan to Value Ratio
at
origination and the Combined Loan-to-Value Ratio at origination; (37) the
effective Loan-to-Value Ratio; (38) the original principal amount of the
Mortgage Loan; (39) the Stated Principal Balance of the Mortgage Loan as of
the
close of business on the Cut-off Date; (40) amortization type (ie: fully
amortizing, interest-only); (41) the amortized original term to maturity as
of
the Cut-off Date; (42) the Mortgage Interest Rate at origination; (43) 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; (44) 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; (45) a code
indicating whether the Mortgage Loan is an Adjustable Rate Mortgage Loan or
a
Fixed Rate Mortgage Loan; (46) with respect to each Adjustable Rate Mortgage
Loan, the first Adjustment Date; (47) with respect to each Adjustable Rate
Mortgage Loan, the next Adjustment Date; (48) with respect to each Adjustable
Rate Mortgage Loan, the Gross Margin; (49) with respect to each Adjustable
Rate
Mortgage Loan, the Maximum Mortgage Interest Rate under the terms of the
Mortgage Note; (50) with respect to each Adjustable Rate Mortgage Loan, the
Minimum Mortgage Interest Rate under the terms of the Mortgage Note; (51) with
respect to each Adjustable Rate Mortgage Loan, the Initial Rate Cap; (52) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate Cap; (53)
with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date; (54) with respect to each Adjustable
Rate Mortgage Loan, the Index; (55) with respect to each Adjustable Rate
Mortgage Loan, a code indicating the frequency of adjustment of the related
Mortgage Interest Rate; (56) a code indicating the purpose of the loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash Out Refinancing); (57) a code
indicating the documentation style (i.e., full, alternative or reduced); (58)
a
code indicating if the Mortgage Loan is subject to a Primary Insurance Policy
or
LPMI Policy; and if so, the provider of such insurance, the coverage percentage
of such insurance and the fee payable to the provider in respect of such
insurance; (59) a code indicating whether the Mortgage Loan is subject to a
Prepayment Charge, the term of such Prepayment Charge and a description
(including the amount) of such Prepayment Charge; (60) a code indicating whether
the Mortgage Loan is a MERS Mortgage Loan and, if so, the corresponding MIN;
(61) the amount of any fees payable by the Mortgagor in connection with the
origination of such Mortgage Loan; (62) Tax Service Contract number (63) Tax
Service Contract provider; and (64) a code indicating whether there is flood
insurance on the Mortgaged Property. 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.
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.
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 successors in title to the Mortgaged Property.
Net
Mortgage Rate: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the then applicable Mortgage Interest Rate for such Mortgage Loan
minus
the Servicing Fee Rate.
Nonrecoverable
Monthly Advance: Any Monthly Advance previously made or proposed
to be made in respect of a Mortgage Loan or REO Property that, in the good
faith
business judgment of the Seller, will not, or, in the case of a proposed Monthly
Advance, would not be, ultimately recoverable from related late payments,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
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.
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.
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.
Permitted
Investments: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Seller or any of its Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by, any Depository Institution;
(iii) repurchase
obligations with respect to any security described in clause (i) above entered
into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by the Rating Agencies in its highest long-term unsecured
rating category at the time of such investment or contractual commitment
providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by the Rating
Agencies in its highest short-term unsecured debt rating available at the time
of such investment; and
(vi) units
of money market funds that have been rated “AAA” by S&P, “Aaa” by Xxxxx’x
and “AAA” by Fitch (if rated by Fitch);
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
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.
Preliminary
Servicing Period: With respect to any Mortgage Loans, the period
commencing on the related Closing Date and ending on the date the Seller enters
into Reconstitution Agreements which amend or restate the servicing
provisions of this Agreement.
Prepayment
Charge: With respect to any Mortgage Loan, any prepayment penalty
or premium payable in connection with a Principal Prepayment on such Mortgage
Loan pursuant to the terms of the related Mortgage Note.
Prepayment
Period: The Prepayment Period with respect to any Distribution
Date prior to a Securitization Transaction will be the calendar month preceding
the month in which the related Distribution Date occurs, and with respect to
any
Distribution Date following a Securitization Transaction, the period from the
16th day of
the
month prior to the month in which such Distribution Date occurs to the 15th day of
the month
in which such Distribution Date occurs.
Primary
Insurance Policy: A policy of primary mortgage guaranty insurance issued by
a Qualified Insurer.
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 or penalty thereon, which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the Purchaser to the
Seller pursuant to the related Confirmation in exchange for the Mortgage Loans
purchased on such Closing Date as provided in Section 4.
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 Xxxxxx Xxx and Xxxxxxx Mac
and
whose claims paying ability is rated in the two highest rating categories by
any
of the rating agencies with respect to primary mortgage insurance and in the
two
highest rating categories by Best’s 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 Net Mortgage Rate
not
less than (and not more than one percentage point in excess of) the Net Mortgage
Rate of the Deleted Mortgage Loan, (iv) have a remaining term to maturity not
greater than (and not less than) that of the Deleted Mortgage Loan, (v) have
the
same Due Date as the Due Date on the Deleted Mortgage Loan, (vi) have a
Loan-to-Value Ratio as of the date of substitution equal to or lower than the
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (vii) be
covered under a Primary Insurance Policy if such Qualified Substitute Mortgage
Loan has a Loan-to-Value Ratio in excess of 80% and the Deleted Mortgage Loan
was covered under a Primary Insurance Policy, (viii) conform to each
representation and warranty set forth in Subsection 7.02 of this Agreement
and
(ix) be the same type of mortgage loan (i.e. first or second, 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 (iv) shall be
determined on the basis of weighted average remaining terms to maturity, the
Loan-to-Value Ratios described in clause (vi) 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 (viii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be. In addition, the substitution of more
than one Mortgage Loan pursuant to the previous sentence shall be subject to
the
Purchaser’s approval in its sole discretion..
Rate/Term
Refinancing: A Refinanced Mortgage Loan, the proceeds of which
are not in excess of the existing first and second mortgage loan on the related
Mortgaged Property and related closing costs, and were used exclusively to
satisfy the then existing first and second mortgage loan of the Mortgagor on
the
related Mortgaged Property and to pay related closing costs.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: The agreement or agreements entered into by the Seller 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 Securitization Transaction 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 Securitization Transaction 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
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Provisions: Provisions of the federal income tax law relating to 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
Disposition: The final sale by the Seller of any REO
Property.
REO
Property: A Mortgaged Property acquired as a result of the
liquidation of a Mortgage Loan.
Repurchase
Price: With respect to any Mortgage Loan, a price equal to (a) (I) if the
related Mortgage Loan has been securitized, the greater of (x) the Purchase
Price percentage used to calculate the Purchase Price as stated in the related
Confirmation and (y) 100%, times the Stated Principal Balance of the Mortgage
Loan so repurchased or (II) if the related Mortgage Loan has not been
securitized, the Purchase Price percentage used to calculate the Purchase Price
for such Mortgage Loan, plus (b) accrued interest thereon at the Mortgage
Interest Rate from the interest paid to date, to 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 (c) any unreimbursed
Servicing Advances and Monthly Advances (including nonrecoverable Monthly
Advances) and any unpaid Servicing Fees allocable to such Mortgage Loan paid
by
or owed to any party other than the Seller, plus (d) any 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, any 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 Xxxxxx Xxx eligible condominium project, or (iv) a detached
one-family dwelling in a planned unit development, none of which is manufactured
housing, a co-operative, a commercial property, an agricultural property, a
mixed use property or a mobile home.
S&P: Standard
& Poor’s, a division of the XxXxxx-Xxxx Companies, Inc. or its successor in
interest.
Second
Lien: With respect to each Mortgaged Property, the lien of the mortgage,
deed of trust or other instrument securing a Mortgage Note which creates a
second lien on the Mortgaged Property.
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.
Seller/Servicer
Information: As defined in Subsection 13.07(a).
Servicer:
As defined in Subsection 13.03(c).
Servicing
Addendum: The terms and conditions attached hereto as Exhibit
8 which will govern the servicing of the Mortgage Loans by Seller during
the
Preliminary Servicing Period.
Servicing
Advances: All customary, reasonable and necessary “out-of-pocket”
costs and expenses incurred by the Seller 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
Criteria: The “servicing criteria” set forth in Item 1122(d) of Regulation
AB, as such may be amended from time to time.
Servicing
Fee: With respect to each Mortgage Loan, the amount of the annual servicing
fee the Purchaser shall pay to the Seller, which shall, for each month, be
equal
to one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of the Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respectively
which
any related interest payment on a Mortgage Loan is computed. 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 Seller, or as
otherwise provided under Subsection 11.05. If the Preliminary
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.
Servicing
Fee Rate: With respect to each Mortgage Loan, the per annum rate set forth
in the related Confirmation at which the Servicing Fee accrues.
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 its designee and copies of the Mortgage Loan
Documents.
Servicing
Transfer Costs: All reasonable costs and expenses incurred by the
Purchaser in connection with the transfer of servicing of the Mortgage Loans
from Seller, 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 Section 17) to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Purchaser (or any successor to Seller appointed pursuant to
Section 17) to service the Mortgage Loans properly and
effectively.
Stated
Principal Balance: As to each Mortgage Loan as of any date of determination,
(i) the scheduled principal balance of the Mortgage Loan as of the Cut-off
Date
after giving effect to payments of principal due on or before such date, whether
or not collected from the Mortgagor 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.
Subprime
Underwriting Guidelines: The Underwriting Guidelines used by the
Seller in connection the origination of subprime Mortgage Loans.
Subcontractor:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Seller or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Seller under this Agreement
or any Reconstitution Agreement that are identified in Item 1122(d) of
Regulation AB.
Subservicing
Agreement: The written contract between the Seller and a Subservicer
relating to servicing and administration of certain Mortgage Loans as provided
in Subsection 11.34 of Exhibit 8.
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 in the
form delivered to the Purchaser, in effect with respect to the Mortgage Loans
purchased by the Initial Purchaser on the Initial Closing Date, as 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 by the Purchaser to a third party, which sale or transfer is
not
a Securitization Transaction.
SECTION
2. Agreement
to Purchase. The Seller agrees to sell, and the Purchaser agrees
to purchase, from time-to-time, Mortgage Loans on a servicing retained basis,
as
set forth in the related Confirmation, 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 Net Mortgage Rate
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 scheduled principal due after the related Cut-off Date,
(2) all other recoveries of principal collected after the related Cut-off Date
(provided, however, that all scheduled payments of principal due on or before
the related Cut-off Date and collected by the Seller after the related Cut-off
Date shall belong to the Seller), (3) all payments of interest on the Mortgage
Loans net of the Servicing Fee (minus that portion of any such interest payment
that is allocable to the period prior to the related Cut-off Date), and (4)
all
Prepayment Charges on the Mortgage Loans collected on or after the Cut-Off
Date.
The Stated Principal Balance of each Mortgage Loan as of the related Cut-off
Date is determined after application to the reduction of principal of payments
of principal due on or before the related Cut-off Date whether or not collected.
Therefore, for the purposes of this Agreement, payments of scheduled principal
and interest prepaid for a Due Date beyond the related Cut-off Date shall not
be
applied to the principal balance as of the related Cut-off Date. Such prepaid
amounts (minus the applicable Servicing Fee) shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser, for
remittance by the Seller to the Purchaser on the first related Distribution
Date. All payments of principal and interest, less the applicable Servicing
Fee,
due on a Due Date following the related Cut-off Date shall belong to the
Purchaser.
SECTION
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 shall (a) deliver to the Purchaser or its
designee 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 or the Seller’s 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.
The
Initial Purchaser shall have the opportunity to conduct a corporate due
diligence of the Seller, including but not limited to, on site review of the
Seller's facilities and discussions with the Seller's management. The Initial
Purchaser may conduct such review prior to or following the Initial Closing
Date. In addition, the Initial Purchaser may perform additional
reviews as the Initial Purchaser, in its sole discretion, deems
necessary.
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 Seller with respect to each Mortgage
Loan pursuant to this Agreement shall be appropriately identified in the
Seller’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 Seller 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 7.05.
|
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 Purchaser or one or more designees
of the Purchaser, as the Purchaser shall designate. Record title to each
Mortgage and the related Mortgage Note shall be transferred by Seller to
Purchaser. Seller shall, with respect to any Mortgage Loan not registered with
the MERS System, at the option of Purchaser, either (i) prepare and cause to
be
recorded the Assignment of Mortgage for each Mortgage Loan and shall, promptly
upon its receipt of each original recorded Assignment of Mortgage from the
applicable recording office, deliver the same to Purchaser, or (ii) prepare
and
deliver to Purchaser an original Assignment of Mortgage from Seller to Purchaser
or in blank. Seller shall bear the cost and expense related to (i) providing
all
Assignments of Mortgages and endorsements of Mortgage Notes for any transfer
of
record title required hereunder with respect to the obligations of the Mortgage
Notes and the underlying security interest related to each Mortgage Loan and
(ii) recording fees and fees for title policy endorsements. In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will cause, at the Seller’s expense, the MERS System to indicate that such
Mortgage Loans have been assigned by the Seller to the Purchaser (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) by including in such computer files the information required by
the
MERS System to identify the Purchaser and the series in which such Mortgage
Loans were sold. The Seller further agrees that it will not alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the term
of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
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.
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Subsection
6.03.
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Delivery
of Mortgage Loan Documents.
|
The
Seller shall, at least five (5) Business Days prior to the related Closing
Date,
deliver and release to the Purchaser or its designee the Mortgage Loan Documents
with respect to each Mortgage Loan to be purchased and sold on such Closing
Date
and set forth on the related Mortgage Loan Schedule delivered with such Mortgage
Loan Documents.
The
Seller shall forward to the Purchaser or its designee original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within two weeks
of
their execution, provided, however, that the Seller shall provide the Purchaser
or its designee 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 days of its submission for recordation.
In
the
event that the Seller does not comply with the delivery requirements set forth
in this Subsection 6.03 with respect to any Mortgage Loan, the related
Mortgage Loan shall, upon request of the Purchaser, be repurchased by the Seller
at the Repurchase Price in accordance with Subsection 7.03.
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SECTION
7.
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Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
|
Subsection
7.01.
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Representations
and Warranties Respecting the
Seller.
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The
Seller represents, warrants and covenants to the 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:
(i) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its formation and has all licenses necessary to carry on its
business as now being conducted. It is licensed in, qualified to transact
business in and is in good standing under the laws of the state in which any
Mortgaged Property is located and is and will remain in compliance with the
laws
of each state in which any Mortgaged Property is located to the extent necessary
to ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement. No licenses or
approvals obtained by 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
Certificate of Formation and Limited Liability Company Operating 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 an approved seller/servicer for Xxxxxx Xxx and Xxxxxxx Mac in good
standing and 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
Xxxxxx Mae, Xxxxxxx Mac or HUD eligibility requirements or which would require
notification to Xxxxxx Mae, Xxxxxxx Mac or 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;
(vii) The
Mortgage Loan Documents and any other documents required to be delivered with
respect to each Mortgage Loan have been delivered to the Purchaser all in
compliance with the specific requirements of this Agreement;
(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 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
information delivered by the Seller to the Purchaser with respect to the
Seller’s loan loss, foreclosure and delinquency experience for the twelve (12)
months immediately preceding the Initial Closing Date on mortgage loans
underwritten to the same standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in all
material respects;
(xiii) 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;
(xiv) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Seller, and 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. 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 Purchaser;
(xv) The
consideration received by the Seller upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
(xvi) 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;
and
(xvii) The
Seller is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
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Subsection
7.02.
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Representations
and Warranties Regarding Individual Mortgage
Loans.
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The
Seller hereby represents, warrants and covenants to the Purchaser that, as
to
each Mortgage Loan, as of the related Closing Date for such Mortgage
Loan:
(i) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule and the Mortgage Loan data delivered to the Purchaser
in
the Data File is complete, true and correct. 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;
(ii) Payments
Current. All payments required to be made up to the close of business on the
Closing 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. 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;
(iii) No
Outstanding Charges. 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;
(iv) Location
and Type of Mortgaged Property. The Mortgaged Property is located in the
state identified in the related Mortgage Loan Schedule and is improved by a
Residential Dwelling;
(v) Original
Terms Unmodified. 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 or registered
with the MERS System if necessary to maintain the lien priority of the Mortgage,
and which have been delivered to the Purchaser; the substance of any such
waiver, alteration or modification has been approved by the insurer under the
Primary Insurance Policy or LPMI Policy, if any, and 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 insurer under the
Primary Insurance Policy or LPMI Policy, if any, the title insurer, to the
extent required by the policy, and which assumption agreement has been delivered
to the Purchaser and the terms of which are reflected in the related Mortgage
Loan Schedule;
(vi) No
Defenses. 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/or
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;
(vii) Conformance
with Underwriting Guidelines and Agency Standards. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines of the Seller in
effect at the time the Mortgage Loan was originated; and the Mortgage Note
and
Mortgage are on forms acceptable to Xxxxxx Xxx and Xxxxxxx Mac;
(viii) Hazard
Insurance. All buildings upon the Mortgaged Property are insured by a
Qualified Insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac against loss by
fire,
hazards of extended coverage and such other hazards as are customary in the
area
where the Mortgaged Property is located, in an amount not less than the lesser
of (i) 100% of the replacement cost of all improvements to the Mortgaged
Property and (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; provided, however, in no event shall the amount
of
insurance be less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property. All such
insurance policies contain a standard mortgagee clause naming the Seller, 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 which
policy conforms to the requirements of Xxxxxx Mae and Xxxxxxx
Mac. 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;
(ix) Compliance
with Laws. Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, fair housing,
disclosure laws and all predatory, abusive and fair lending laws applicable
to
the origination and servicing of mortgage loans of a type similar to the
Mortgage Loans have been complied with and the consummation of the transactions
contemplated hereby will not involve the violation of any such laws, and the
Seller shall maintain in its possession, available for the inspection of the
Purchaser or its designee, and shall deliver to the Purchaser or its designee,
upon two Business Days’ request, evidence of compliance with such
requirements;
(x) No
Satisfaction of Mortgage. 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;
(xi) Valid
Lien. The related Mortgage is properly recorded and 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) 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 and (d)
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. 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 (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
Mortgage Loan (as reflected on the Mortgage Loan Schedule), in either case,
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;
(xii) Validity
of Mortgage Loan Documents. 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;
(xiii) Legal
Capacity. 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;
(xiv) Full
Disbursement of Proceeds. 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;
(xv) Ownership.
The Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note and the Mortgage. The Seller has full right and authority under
all governmental and regulatory bodies having jurisdiction over such Seller,
subject to no interest or participation of, or agreement with, any party, to
transfer and sell the Mortgage Loan to the Purchaser pursuant to this Agreement
free and clear of any encumbrance or right of others, equity, lien, pledge,
charge, mortgage, claim, participation interest or security interest of any
nature (collectively, a “Lien”); and immediately upon the transfers and
assignments herein contemplated, the Seller shall have transferred and sold
all
of its right, title and interest in and to each Mortgage Loan and the Purchaser
will hold good, marketable and indefeasible title to, and be the owner of,
each
Mortgage Loan subject to no Lien;
(xvi) Doing
Business. All parties which have had any interest in the Mortgage Loan,
whether as originator, mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were):
(A)
organized under the laws of such state, or (B) qualified to do business in
such
state, or (C) federal savings and loan associations or national banks having
principal offices in such state, or (D) not doing business in such state so
as
to require qualification or licensing, or (E) not otherwise required to be
licensed in such state. All parties which have had any interest in
the Mortgage Loan 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 or were not required to be licensed in such
state;
(xvii) Title
Insurance. The Mortgage Loan is covered by an American Land Title
Association (“ALTA”) ALTA lender’s title insurance policy acceptable to Xxxxxx
Xxx and Xxxxxxx Mac (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), issued
by a title insurer acceptable to Xxxxxx Xxx and Xxxxxxx Mac and qualified to
do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained above in (xi)(a) and (b) and, 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) clause (d)) the
Seller, its successors and assigns as to the first priority lien of the Mortgage
in the original principal amount of the Mortgage Loan 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. 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;
(xviii) No
Defaults. There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and
the
Seller has not waived any default, breach, violation or event of
acceleration. 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) (i) the First Lien 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, and 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;
(xix) No
Mechanics’ Liens. There are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under law could give rise to such 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;
(xx) Origination.
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) Payment
Terms. Payments on the Mortgage Loan shall commence (with respect to any
newly originated Mortgage Loans) or commenced no more than sixty 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, the Mortgage Note is payable on the first day of each month in Monthly
Payments, which, (A) 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 (B) 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. The Index for each Adjustable Rate Mortgage Loan is as defined
in the related Mortgage Loan Schedule. 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 the 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. 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 a term greater than 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 as
of
the Due Date of such Monthly Payment. No Balloon Mortgage Loan has an
original stated maturity of less than seven (7) years. The Mortgage Note does
not permit negative amortization. No Mortgage Loan had an original
term to maturity of more than thirty (30) years;
(xxii) Origination
and Collection Practices; Escrow Deposits. The origination, servicing and
collection practices used by the Seller 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 all
applicable laws, rules and regulations, the terms of the Mortgage Note and
Mortgage, and the Xxxxxx Xxx and Xxxxxxx Mac servicing guides. With
respect to escrow deposits and Escrow Payments (other than with respect to
each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
and for which the mortgagee under the First Lien is collecting Escrow Payments
(as reflected on the Mortgage Loan Schedule)), 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) Mortgaged
Property Undamaged. As of the Closing Date, the Mortgaged Property is free
of damage and waste and is in good repair, and there is no proceeding pending
or
threatened for the total or partial condemnation thereof nor is such a
proceeding currently occurring;
(xxiv) Customary
Provisions. The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (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) Appraisal.
Unless otherwise set forth on the Mortgage Loan Schedule, the Mortgage File
contains an appraisal of the related Mortgaged Property which, (a) with respect
to First Lien Mortgage Loans, was on appraisal form 1004 or form 2055 with
an
interior inspection, or (b) with respect to Second Lien Mortgage Loans, was
on
appraisal form 704, 2065 or 2055 with an exterior only inspection, and (c)
with
respect to (a) or (b) above, 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 Xxxxxx Mae and Xxxxxxx Mac. 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;
(xxvi) Deeds
of Trust. In the event the Mortgage constitutes a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(xxvii) Construction
or Rehabilitation of Mortgaged Property. 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;
(xxviii) LTV;
CLTV. The Loan-to-Value Ratio of any Mortgage Loan at origination was not
more than 95% and the CLTV of any Mortgage Loan at origination was not more
than
100%; Each Mortgage Loan (other than any Mortgage Loan underwritten
pursuant to the Seller’s Subprime Underwriting Guidelines) with an original
Loan-to-Value Ratio at origination greater than 80% is and will be subject
to a
Primary Insurance Policy, issued by a Qualified Insurer, which insures that
portion of the Mortgage Loan in excess of the portion of the Appraised Value
of
the Mortgaged Property as required by Xxxxxx Mae. All provisions of
such Primary Insurance Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have been
paid. Any Mortgage subject to any such Primary Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance and to pay all
premiums and charges in connection therewith. The Mortgage Interest
Rate for the Mortgage Loan does not include any such insurance premium (if
any). If a Mortgage Loan is identified on the Mortgage Loan Schedule
as subject to a Lender Paid Mortgage Insurance Policy, such policy insures
that
portion of the Mortgage Loan set forth in the LPMI Policy. All
provisions of any such LPMI Policy have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. The Mortgage Interest Rate for the Mortgage Loan does not
include the insurance premium for any LPMI Policy (if any);
(xxix) Occupancy
of the Mortgaged Property. The Mortgaged Property is lawfully occupied under
applicable law; all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities. No improvement located on
or being part of any Mortgaged Property is in violation of any applicable zoning
and subdivision law, ordinance or regulation;
(xxx) No
Error, Omission, Fraud etc. 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 Seller, 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;
(xxxi) Consolidation
of Advances; Lien Priority. 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 reflected
on the Mortgage Loan Schedule. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having (A) first lien
priority 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
priority 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),
in
either case, by a title insurance policy, an endorsement to the policy insuring
the mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(xxxii) Environmental
Matters. 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, to the Seller’s
knowledge, the related Mortgagor, has received any notice of any violation
or
potential violation of such law;
(xxxiii) HOEPA.
No Mortgage Loan is (a) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”), or has an “annual percentage
rate” or “total points and fees” payable by the borrower (as each term is
defined under HOEPA) that equals or exceeds the applicable thresholds defined
under HOEPA (Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i)
and
(ii)), (b) a “high cost” mortgage loan, “covered” mortgage loan (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7, 2004),
“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,
provided that this determination shall be made with respect to the relevant
state or local law, regardless of the effect of any available federal
preemption, other than exemptions specifically provided for in the relevant
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, assignee liability to holders of such mortgage
loans or additional legal liability for mortgage loans having high interest
rates, points and/or fees, 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);
(xxxiv) Due-On-Sale.
Each Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the related Mortgage Loan in the
event the related Mortgaged Property is sold or transferred without the prior
consent of the mortgagee thereunder;
(xxxv) Second
Liens. With respect to each Mortgage Loan which is a Second Lien, (i) the
related First Lien does not provide for negative amortization, (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 (iii)
such Second Lien is on a Residential Dwelling that is (or will be) the principal
residence of the Mortgagor upon origination of the Second Lien;
(xxxvi) Prepayment
Charges in Mortgage Loan Documents. The Mortgage Loan Documents with respect
to each Mortgage Loan subject to Prepayment Charges specifically authorizes
such
Prepayment Charges to be collected, such Prepayment Charges are permissible
and
enforceable in accordance with the terms of the related Mortgage Loan Documents
and all federal, state and local laws (except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally or
the collectability thereof may be limited due to acceleration in connection
with
a foreclosure) and each Prepayment Charge was originated in compliance with
all
federal, state and local laws;
(xxxvii) Compliance
with Patriot Act. The Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation the USA Patriot
Act of 2001 (collectively, the “Anti-Money Laundering Laws”). The
Seller has established an anti-money laundering compliance program as required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws; 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 “blocked person” for
purposes of the OFAC Regulations;
(xxxviii) MERS
Mortgage Loans. With respect to each MERS Mortgage Loan, a MIN has been
assigned by MERS and such MIN is accurately provided on the related 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. With respect to each MERS Mortgage Loan, the 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;
(xxxix) FACT
Act. The sale or transfer of the Mortgage Loan by the Seller
complies with all 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.
(xl) Qualified
Mortgage. 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);
(xli) Condos
and PUDs. 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 Seller’s Underwriting
Guidelines;
(xlii) Appraised
Value. 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;
(xliii) No
Additional Collateral. 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 (xi) above;
(xliv) Buydown
Mortgage Loans. 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.
(xlv) No
Convertible Mortgage Loans; No Graduated Payments or Contingent Interests.
No Mortgage Loan is a Convertible Mortgage Loan. 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;
(xlvi) Disclosure
Materials. The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by 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;
(xlvii) Recordation
of Mortgages. Each original Mortgage was recorded and all subsequent
assignments of the original Mortgage (other than the assignment to the
Purchaser) have been recorded, or are in the process of being recorded, in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller. As to any Mortgage Loan which
is not a MERS Mortgage Loan, 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;
(xlviii) Texas
Refinance Loans. Each Mortgage Loan originated in the state of Texas
pursuant to Article XVI, Section 50(a)(6) of the Texas Constitution (a “Texas
Refinance Loan”) has been originated in compliance with the provisions of
Article XVI, Section 50(a)(6) of the Texas Constitution, Texas Civil Statutes
and the Texas Finance Code. With respect to each Texas Refinance Loan
that is a Cash Out Refinancing, the related Mortgage Loan Documents state that
the Mortgagor may prepay such Texas Refinance Loan in whole or in part without
incurring a Prepayment Charge. The Seller does not collect any such
Prepayment Charges in connection with any such Texas Refinance
Loan;
(xlix) Verification
of Down Payment. Unless otherwise set forth on the Mortgage Loan Schedule,
the source of the down payment with respect to each Mortgage Loan has been
fully
verified by the Seller;
(l) Tax
Service Contracts. The Seller shall, at its own expense, cause each Mortgage
Loan to be covered by a “life of loan” Tax Service Contract which is assignable
to the Purchaser or its designee at no cost 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;
(li) Flood
Zone Service Contracts. Each Mortgage Loan is covered by a “life of loan”
Flood Zone Service Contract which is assignable to the Purchaser or its
designee
at no cost 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;
(lii) No
Cooperatives; No Commercial Property; No Mixed Use Property, No Manufacture
Housing. No Mortgage Loan is secured by cooperative housing, commercial
property, manufactured housing, a mobile home or mixed use
property;
(liii) Secondary
Market Sales. Each Mortgage Loan is eligible for sale in the secondary
market or for inclusion in a Securitization Transaction without unreasonable
credit enhancement;
(liv) No
Adverse Selection. No selection procedures were used by the Seller that
identified the Mortgage Loans as being less desirable or valuable than other
comparable mortgage loans in the Seller’s portfolio;
(lv) Georgia.
No Mortgage Loan originated or modified on or after October 1, 2002 and prior
to
March 7, 2003 is secured by a Mortgaged Property located in the State of
Georgia. No Mortgage Loan originated on or after March 7, 2003 is a
“high cost home loan” as defined under the Georgia Fair Lending
Act.
(lvi) New
Jersey Manufactured Housing Loans. No Mortgage Loan is a
“manufactured housing loan” pursuant to the NJ Act, and one hundred percent of
the amount financed of any purchase money Second Lien Mortgage Loan subject
to
the NJ Act was used for the purchase of the related Mortgaged
Property;
(lvii) Reserved;
(lviii) No
Ground Leases. No Mortgage Loan is secured in whole or in part by the
interest of the Mortgagor as a lessee under a ground lease of the related
Mortgaged Property;
(lix) Massachusetts
Refinanced Mortgage Loans. 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;
(lx) Broker
Fees. The Mortgagor 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;
(lxi) Acceptable
Investment. 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, cause the Mortgage Loan to
become delinquent, cause the Mortgage Loan to not be paid in full when due,
or
adversely affect the value of the Mortgage Loan;
(lxii) No
Notification of Prepayments in Full. 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;
(lxiii) Limitation
on number of Mortgage Notes per Borrower. No Mortgagor is the obligor on
more than two Mortgage Notes in the related Mortgage Loan pool;
(lxiv) Prepayment
Charges; With respect to any Mortgage Loan that contains a provision
permitting imposition of a Prepayment Charge upon a Principal Prepayment prior
to maturity: (i) prior to the Mortgage Loan’s origination, the Mortgagor agreed
to such Prepayment Charge in exchange for a monetary benefit, including but
not
limited to a Mortgage Interest Rate or fee reduction, (ii) prior to the Mortgage
Loan’s origination, the Mortgagor was offered the option of obtaining a Mortgage
Loan that did not require payment of a Prepayment Charge and the originator
of
the Mortgage Loan had a written policy of offering borrowers, or requiring
third-party brokers to offer borrowers, the option of obtaining a mortgage
loan
that did not require the payment of a Prepayment Charge, (iii) the Prepayment
Charge is disclosed to the Mortgagor in the Mortgage Loan Documents pursuant
to
state and federal law, (iv) for Mortgage Loans originated on or after October
1,
2002, the duration of the prepayment period shall not exceed three (3) years
from the date of the Mortgage Note, unless the Mortgage Loan was modified to
reduce the prepayment period to no more than three years from the date of the
Mortgage Note and the Mortgagor was notified in writing of such reduction in
the
prepayment period, (v) no Mortgage Loan originated prior to October 1, 2002
has
a Prepayment Charge longer than five years and (vi) notwithstanding any state
or
federal law to the contrary, the Seller shall not impose such Prepayment Charge
in any instance when the Mortgage Loan is accelerated or paid off in connection
with the workout of a delinquent mortgage or due to the Mortgagor’s
default. Each Prepayment Charge is permissible, collectable and
enforceable.
(lxv) No
Predatory Lending. 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 tangible net benefit to the Mortgagor,
were employed in connection with the origination of the Mortgage
Loan. Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Xxxxxx Mae’s Selling Guide. No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of the related loan application, the
Mortgagor may have qualified for a lower cost credit product then offered by
any
mortgage lending affiliate of the Mortgage Loan’s originator, the Mortgage
Loan’s originator referred the Mortgagor’s application to such affiliate for
underwriting consideration;
(lxvi) Underwriting
Methodology. The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical principles which relate
the Mortgagor’s income, assets and liabilities to the proposed payment and such
underwriting methodology did and does not rely solely on the extent of the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval) the Mortgagor
had a reasonable ability to make timely payments on the Mortgage
Loan.
(lxvii) Points
and Fees Disclosed. All
points, fees and charges, including finance charges (whether or not financed,
assessed, collected or to be collected), in connection with the origination
and
servicing of any Mortgage Loan were disclosed in writing to the related
Mortgagor in accordance with state and federal laws and regulations and no
related Mortgagor was charged “points and fees” (whether or not financed) in an
amount that exceeds the greater of (1) 5% of the principal amount of such loan
or (2) $1,000. For the purposes of this representation, “points and
fees” (a) include origination, underwriting, broker and finder’s fees and
charges that the lender imposed as a condition of making the Mortgage 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 Loan (such as attorneys’ fees, notaries fees and
fees paid for property appraisals, credit reports, surveys, title examinations
and extracts, flood and tax certifications, and home inspections) and the cost
of mortgage insurance or credit-risk price adjustments; the costs of title,
hazard, and flood insurance policies; state and local transfer taxes or fees;
escrow deposits for the future payment of taxes and insurance premiums; and
other miscellaneous fees and charges, which miscellaneous fees and charges
in
total, do not exceed 0.25 percent of the loan amount);
(lxviii) Full
File Credit Reporting (Xxxxxx Mae). The Seller will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide
Announcement 95-19 and for each Mortgage Loan, Seller agrees it shall report
one
of the following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off;
(lxix) No
Credit Life Policies. No Mortgagor was required to purchase any single
premium credit insurance policy (e.g. life, mortgage, disability, accident,
unemployment, property 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, property or health insurance
product) in connection with the origination of the Mortgage Loan, and 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;
(lxx) Full
File Credit Reporting (Past Practice; Future Practice). The Seller will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Credit
Information Company (three of the credit repositories), on a monthly basis;
and
(lxxi) No
Arbitration. With respect to each Mortgage Loan, neither the related
Mortgage nor the related Mortgage Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising out of or relating in any way to
the
Mortgage Loan; No Mortgagor agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the Mortgage
Loan.
|
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 or the Purchaser of a breach of any of the foregoing
representations and warranties (notwithstanding any representation and warranty
given to the best of Seller’s knowledge) which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser (or which
materially and adversely affects the interests of the Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within
60
days (or with respect to a breach of Subsection 7.02(xxxviii), within ten
(10) days) of the earlier of either discovery by or notice to the Seller of
any
breach of a representation or warranty which materially and adversely affects
the value of 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 within two (2) Business Days
following the expiration of the related cure period. 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. With respect to any representations and warranties made by the
Seller, in the event that it is discovered that the circumstances with respect
to the Mortgage Loan are not accurately reflected in such representation and
warranty notwithstanding the actual knowledge or lack of knowledge of Seller,
then, notwithstanding that such representation and warranty is made “to the best
of the Seller’s knowledge,” or in reliance on or based on other information,
there shall be a breach of such representation and Seller shall cure such breach
or repurchase the affected Mortgage Loan as provided in this Subsection
7.03. 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. 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 (ix), (xxxiii), (xl), (lii), (lv), (lvi), (lxiv), (lxv), (lxvi), (lxvii),
(lxix), (lxx) and (lxxi) will be deemed to materially and adversely affect
the
value of the related Mortgage Loan or the interest of the Purchaser
therein.
Any
repurchase of a Mortgage Loan(s) pursuant to the foregoing provisions of this
Subsection 7.03 shall occur on a date designated by 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.
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 Purchaser
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.
If
the
Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller
shall either (i) cause MERS to execute and deliver an Assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Seller and shall
cause
such Mortgage to be removed from registration on the MERS System in accordance
with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS
System the Seller or its designee as the beneficial holder of such Mortgage
Loan.
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 required by this Agreement, 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 product of the amount of such
shortfall multiplied by the greater of 100% or the Purchase Price percentage
specified in the related Confirmation 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
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 Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in this Section 7. 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 Purchaser as provided in this Subsection 7.03 constitute
the sole remedies of the Purchaser respecting a breach of the foregoing
representations and warranties. The indemnification obligation of the
Seller set forth herein shall survive the termination of this Agreement
notwithstanding any applicable statute of limitations, which the Seller hereby
expressly waives.
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, (ii) failure by the Seller to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with the relevant
provisions of this Agreement.
In
addition to the foregoing, within 60 days of the earlier of discovery by Seller
or receipt of notice by Seller of a breach of any representation of any Seller
which materially and adversely affects the interests of any Prepayment
Charge, the Seller shall pay the amount of the scheduled Prepayment Charge
to
the Purchaser.
|
Subsection
7.04.
|
Prepayment-in-Full
Premium Recapture.
|
In
the
event that any Mortgage Loans prepay-in-full within three (3) months of the
related Closing Date, the Seller shall remit to the Purchaser within five (5)
Business Days following receipt of notice from the Purchaser of a
prepayment-in-full, the greater of (i) an amount equal to the product of (A)
the
excess of the related purchase price percentage over 100% and (B) the Stated
Principal Balance of such prepaid Mortgage Loan as of the related Closing Date
or (ii) the amount of any prepayment penalty fees paid with respect to such
Mortgage Loan.
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Subsection
7.05
.
|
Early
Payment Default.
|
In
the
event that any Mortgagor fails to make the first scheduled Monthly Payment
due
on a Mortgage Loan or due to Purchaser within the calendar month such payment
is
due, Seller shall repurchase such Mortgage Loan at the Repurchase Price within
five (5) Business Days following receipt of notice from the Purchaser of such
payment default.
SECTION
8. Closing. The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Purchaser’s option, the closing shall be either: by telephone,
confirmed by letter or wire as the parties shall agree, or conducted in person,
at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
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(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;
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(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 Purchaser, duly executed by all signatories other
than
the Purchaser as required pursuant to the terms
hereof;
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|
(c)
|
the
Seller shall have delivered and released to the Purchaser all documents
required pursuant to this Agreement;
and
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|
(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 shall submit to the Initial
Purchaser fully executed originals of the following documents:
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1.
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this
Agreement, in four counterparts;
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2.
|
a
Custodial Account Letter Agreement in the form attached as Exhibit
6 hereto;
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|
3.
|
as
Escrow Account Letter Agreement in the form attached as Exhibit 7
hereto;
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4.
|
an
Officer’s Certificate, in the form of Exhibit 1 hereto, including
all attachments thereto;
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5.
|
an
Opinion of Counsel to the Seller, in the form of Exhibit 2 hereto;
and
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6.
|
the
Seller’s Underwriting Guidelines.
|
(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.
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the
related Confirmation;
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2.
|
the
related Mortgage Loan Schedule;
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3.
|
an
Officer’s Certificate, in the form of Exhibit 1 hereto, including
all attachments thereto;
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4.
|
if
requested by the Initial Purchaser, an Opinion of Counsel to the
Seller,
in the form of Exhibit 2
hereto;
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5.
|
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;
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6.
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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; and
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7.
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an
Assignment and Conveyance in the form of Exhibit 4
hereto.
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(c) In
addition, to the extent that the Underwriting Guidelines are modified, amended
or supplemented at any time following the Initial Closing Date, the Seller
shall
notify the Purchaser of such change and provide the Purchaser a copy in both
electronic and hard copy of such modification, amendment or supplement no later
than five (5) Business Days following the effective date of such modification,
amendment or supplement.
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 recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage and the Seller’s attorney’s fees,
shall be paid by the Seller.
SECTION
11. Seller’s
Servicing Obligations. The Seller, as independent contract
servicer, shall service and administer the Mortgage Loans during the Preliminary
Servicing Period in accordance with the terms and provisions set forth in the
Servicing Addendum attached as Exhibit 8 which Servicing Addendums are
incorporated herein by reference.
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement
Upon
a Whole Loan Transfer or a
Securitization Transaction onOne or More Reconstitution
Dates.
The
Seller and the Initial Purchaser agree that with respect to some or all of
the
Mortgage Loans, the Initial Purchaser may effect either:
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(1)
|
one
or more Whole Loan Transfers;
and/or
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|
(2)
|
one
or more Securitization
Transactions.
|
With
respect to each Whole Loan Transfer or Securitization Transaction, as the case
may be, entered into by the Initial Purchaser, the Seller agrees:
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(1)
|
to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures and
with
respect to the preparation (including, but not limited to, the
endorsement, delivery, assignment, and execution) of the Mortgage
Loan
Documents and other related documents, and with respect to servicing
requirements reasonably requested by the rating agencies and credit
enhancers;
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(2)
|
to
execute all agreements required to be executed by the Seller in connection
with such Whole Loan Transfer or Securitization Transaction, including
without limitation any Reconstitution Agreements, the Assignment
and
Recognition Agreement substantially in the form set forth as Exhibit
9 attached hereto, and the Indemnification Agreement substantially
in
the form set forth as Exhibit 10 attached hereto, 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 documents
not
specifically referenced or provided for
herein;
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|
(3)
|
with
respect to any Whole Loan Transfer or Securitization Transaction,
the
Seller shall make the representations and warranties regarding the
Seller
and the Mortgage Loans as of the date of the Whole Loan Transfer
or
Securitization Transaction, modified to the extent necessary to accurately
reflect the pool statistics of the Mortgage Loans as of the date
of such
Whole Loan Transfer or Securitization Transaction and supplemented
by
additional representations and warranties that are not unreasonable
under
the circumstances as of the date of such Whole Loan Transfer or
Securitization Transaction, to the extent that any events or
circumstances, including changes in law occurring subsequent to the
related Closing Date(s), would render a related Mortgage Loan unmarketable
to a material segment of the secondary mortgage or mortgage-backed
securities market;
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(4)
|
to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller,
its
underwriting guidelines, its financial condition and its mortgage
loan
delinquency, foreclosure and loss experience and any additional
information requested by the Purchaser, 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 misstatements or
omissions or any alleged misstatements or omissions contained (i)
in such
information and (ii) on the Mortgage Loan
Schedule;
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(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;
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(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 Securitization Transactions, as the case may be, such
in-house Opinions of Counsel for a Securitization Transaction 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 Securitization Transaction, as the case may
be,
shall be the responsibility of the
Purchaser;
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(7)
|
in
connection with any securitization of any Mortgage Loans, to negotiate
and
execute one or more subservicing agreements between the Seller and
any
master servicer which is generally considered to be a prudent master
servicer in the secondary mortgage market, 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 which is generally considered to be
a
prudent custodian/trustee in the secondary mortgage market 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;
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(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 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 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. At
the option of the Purchaser, the facilities of the Depository Trust
Company (“DTC”) may be used in connection with any class of security
issued pursuant to any pooling agreement, subject only to the consent
of
the DTC. 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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|
(9)
|
with
respect to each Whole Loan Transfer and Securitization Transaction,
the
Seller shall establish and maintain one or more Custodial Accounts
and
Escrow Accounts with respect to the Mortgage Loans sold pursuant
to such
Whole Loan Transfer or Securitization Transaction, which accounts
shall be
established and maintained in addition to, and separate and apart
from,
any other Custodial Account or Custodial Accounts and Escrow Account
or
Escrow Accounts established and maintained pursuant to this Agreement.
The
sale or transfer of the Mortgage Loans pursuant to a Whole Loan Transfer
or Securitization Transaction shall be deemed to create a separate
and
distinct servicing agreement by the Seller with respect to such Mortgage
Loan or Loans. In connection therewith, the obligation of the Seller
in
respect of compensating interest payments for Prepayment Interest
Shortfalls with respect to the Mortgage Loans sold pursuant to a
Whole
Loan Transfer or Securitization Transaction, or sold pursuant to
one Whole
Loan Transfer or Securitization Transaction and separated by loan
group
(each, a “Loan Group”), shall accrue with respect to the related Mortgage
Loans or Loan Group, and shall not be made on an aggregate basis
with all
of the Mortgage Loans purchased pursuant to or in connection with
this
Agreement or with the Mortgage Loans of a different Loan Group. In
addition, any reimbursement of the Seller in respect of Monthly Advances,
Servicing Advances and unreimbursed Servicing Fees shall be reimbursed
first on a loan by loan basis and, if reimbursed out of general
collections on the related Mortgage Loans, shall be reimbursed from
collections on the Mortgage Loans sold pursuant to the related Whole
Loan
Transfer or Securitization Transaction or, with respect to Mortgage
Loans
sold pursuant to one Whole Loan Transfer or Securitization Transaction
and
separated by Loan Group, out of collections of the Mortgage Loans
in the
related Loan Group; and
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|
(10)
|
in
connection with any securitization of any Mortgage Loans, to transfer
the
servicing rights to the Purchaser or its designee as described in
Section 16 upon the direction of the
Purchaser.
|
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Securitization Transaction shall be subject to this Agreement and shall continue
to be serviced for the remainder of the Preliminary Servicing Period in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
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
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
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 any master servicer to deliver to the Purchaser (including any of its
assignees or designees), any master servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the master servicer or any
Depositor to permit the Purchaser, such master servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
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 Subsection 13.03 that,
except as disclosed in writing to the Purchaser, such master servicer or such
Depositor prior to such date: (i) the Seller is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Seller’s financial condition that could have a material
adverse effect on the performance by the Seller of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller, any Subservicer or any Third-Party Originator; and (vii) there
are
no affiliations, relationships or transactions relating to the Seller, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type
described in Item 1119 of Regulation AB.
(b) If
so
requested by the Purchaser, 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 Subsection 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 Subsection 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, any master servicer or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause each Third-Party Originator and
each Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (b), (c) and (g) of this Subsection, 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 (d) of this Subsection.
(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, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 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. With respect to the information regarding
the size and composition of the originator’s origination portfolio, the Company
shall deliver to the Purchaser and to any person designated by the Purchaser,
at
the Purchaser’s expense, an agreed upon procedures report of a reputable,
certified public accountant pertaining to such information if reasonably
requested by the Purchaser;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer 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) Reserved.
(c) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1111, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2)
the extent of outsourcing the Servicer utilizes;
(3)
whether there has been previous disclosure of material noncompliance with the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a Servicer during the
three-year period immediately preceding the related Securitization
Transaction;
(4)
whether the Servicer has been terminated as Servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; and
(5)
such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
With
respect to the information regarding the size, composition and growth of the
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans, the Servicer shall deliver to the Purchaser and to any person
designated by the Purchaser, at the Purchaser’s expense, an agreed upon
procedures report of a reputable, certified public accountant pertaining to
such
information if reasonably requested by the Purchaser;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience; and
(I) historical
delinquency information with respect to the Mortgage Loans since origination
of
the Mortgage Loans.
(d) For
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Subservicer and Third-Party Originator to) (i) provide prompt notice
to the Purchaser, any master servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Seller,
any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller, any Subservicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Subsection (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Seller’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) 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.
(f) In
addition to such information as the Seller, as Servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, the master servicer) notice of the occurrence of
any
of the following events along with all information, data and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asst representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB): and
(iii)
information regarding new asset-backed securities issuances backed by the same
pool assets, any pool asset changes (such as additions, substitutions or
repurchases) and any material changes in origination, underwriting or other
criteria for acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
(g) The
Seller shall provide to Purchaser, any master servicer and any Depositor, such
additional information as such party may reasonably request, including evidence
of the authorization of the person signing any certification or statement,
financial information and reports, and such other information related to the
Seller or any Subservicer or the Seller or such Subservicers’ performance
hereunder.
|
Subsection
13.04.
|
Servicer
Compliance Statement.
|
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser, any master servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such master servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement
and
any applicable Reconstitution Agreement during such period has been made under
such officer’s supervision, and (ii) to the best of such officers’ knowledge,
based on such review, the Seller has fulfilled all of its obligations under
this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
|
Subsection
13.05.
|
Report
on Assessment of Compliance and
Attestation.
|
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser, any master servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such master servicer and
such Depositor) regarding the Seller’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser, such master servicer and
such Depositor and signed by an authorized officer of the Seller, and shall
address each of the applicable Servicing Criteria specified on Exhibit 12
hereto;
(ii) deliver
to the Purchaser, any master servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such master
servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Subsection 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any master
servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Subsection;
and
(iv) deliver
to the Owner, any Depositor, any Master Servicer and any other Person that
will
be responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a certification, signed
by
the appropriate officer of the Seller in the form attached hereto as Exhibit
11.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
13.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Subsection 13.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Seller pursuant to Subsection
13.06.
|
Subsection
13.06.
|
Use
of Subservicers and
Subcontractors.
|
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Subsection. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to
hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Subsection.
(a) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer) for
the
benefit of the Purchaser and any Depositor to comply with the provisions of
this
Subsection and with Subsections 13.02, 13.03(c), (e), (f) and (g), 13.04, 13.05
and 13.07 of this Agreement to the same extent as if such Subservicer were
the
Seller, and to provide the information required with respect to such Subservicer
under Subsection 13.03(d) of this Agreement. The Seller shall be responsible
for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any Servicer compliance statement required to be delivered by such
Subservicer under Subsection 13.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Subsection 13.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Subsection 13.05 as and when
required to be delivered.
(b) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subcontractor. The Seller
shall promptly upon request provide to the Purchaser, any master servicer and
any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Purchaser, such
master servicer and such Depositor) of the role and function of each
Subcontractor utilized by the Seller or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Subsections 13.05 and 13.07 of this Agreement
to
the same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Subsection 13.05, in each
case as and when required to be delivered.
|
Subsection
13.07.
|
Indemnification;
Remedies.
|
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person (including, but not limited to, any
master servicer, if applicable) 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:
(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 under this Section 13 by or on behalf of the Seller, or
provided in written or electronic form under this Section 13 by or on behalf
of
any Subservicer, Subcontractor or Third-Party Originator (collectively, the
“Seller/Servicer Information”), or (B) the omission or alleged omission to state
in the Seller/Servicer Information a material fact required to be stated in
the
Seller/Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this paragraph
shall be construed solely by reference to the Seller/Servicer Information and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Seller/Servicer 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, including any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 13, including
any failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 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
Subsection 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
Subsection, 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, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b)(i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 13, or any
breach by the Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 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
Subsection 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, any master servicer
or any 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.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 13.04 or 13.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser, any master servicer or any
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 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.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Seller pursuant to this subparagraph (b)(ii) if a failure
of
the Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(iii) The
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.
SECTION
14. The
Seller.
|
Subsection
14.01.
|
Additional
Indemnification by the Seller.
|
In
addition to the indemnification provided in Subsection 7.03, the Seller 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
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, any Reconstitution Agreement or any other
agreement entered into pursuant to Section 12. The
indemnification obligation of the Seller set forth herein shall survive the
termination of this Agreement notwithstanding any applicable statute of
limitations, which the Seller hereby expressly waives.
|
Subsection
14.02
|
Merger
or Consolidation of the Seller.
|
The
Seller shall keep in full force and effect its existence, rights and franchises
as a Certificate of Formation and Limited Liability Company Operating Agreement
under the laws of the state of its formation 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 to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, shall be
a
Xxxxxx Xxx or Xxxxxxx Mac approved seller/servicer and shall satisfy any
requirements of Section 17 with respect to the qualifications of a
successor to the Seller.
|
Subsection
14.03.
|
Limitation
on Liability of the Seller and
Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller 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 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 and
any
officer, employee or agent of the Seller 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 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 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 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 indemnification under Subsections
7.03 or 13.01.
|
Subsection
14.04.
|
Seller
Not to Resign.
|
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller 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
Seller in which event the Seller may resign as servicer. Any such determination
permitting the resignation of the Seller 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 Seller. No such resignation shall become
effective until a successor shall have assumed the Seller’s responsibilities and
obligations hereunder in the manner provided in Section 17.
|
Subsection
14.05.
|
No
Transfer of Servicing.
|
The
Seller acknowledges that the Purchaser has acted in reliance upon the Seller’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 Seller 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 Seller shall occur and
be
continuing, that is to say:
(i) any
failure by the Seller to remit to the Purchaser any payment or advance required
to be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day following the day on which the Seller receives
written notification of such failure; or
(ii) any
failure to deliver the remittance report required pursuant to Subsection 11.15
in accordance with such Section which failure continues unremedied for a
period of two Business Days after the date upon which written notice requiring
the same to be remedied shall have been given to the Seller by the Purchaser
or
its designee; or
(iii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement which continues unremedied for a period of thirty days (except that
such number of days shall be fifteen 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 by the Purchaser; or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
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 and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(v) the
Seller 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 of
or relating to all or substantially all of its property; or
(vi) the
Seller 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
(vii) failure
by the Seller to be in compliance with the “doing business” or licensing laws of
any jurisdiction where a Mortgaged Property is located; or
(viii) the
Seller ceases to meet the qualifications of either a Xxxxxx Xxx or Xxxxxxx
Mac
seller/servicer, the Seller 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
(ix) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller 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; or
(x) to
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Seller’s membership in
MERS is terminated for any reason; or
(xi) the
Seller fails to duly perform, within the required time period, its obligations
under Subsections 11.24 or 11.25 of the Servicing Addendum, which failure
continues unremedied for a period of fifteen (15) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller 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 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 Seller as servicer under this Agreement. On or after the
receipt by the Seller of such written notice, all authority and power of the
Seller 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.
All
Servicing Transfer Costs shall be paid by the Seller upon presentation of
reasonable documentation of such costs.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Subsection 14.04) of the Seller hereunder,
either (i) the successor Seller shall represent and warrant that it is a member
of MERS in good standing and shall agree to 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, or (ii) the Seller shall cooperate
with the successor company either (x) in causing MERS to execute and deliver
an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Purchaser and to execute and deliver such other notices, documents and
other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS System to the
successor company or (y) in causing MERS to designate on the MERS System the
successor company as the servicer of such Mortgage Loan.
|
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 servicer, shall
terminate upon the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by
the
Seller) or the disposition of all property acquired upon foreclosure or deed
in
lieu of foreclosure with respect to the last Mortgage Loan and the remittance
of
all funds due hereunder unless terminated with respect to all or a portion
of
the Mortgage Loans on an earlier date at the option of the Purchaser pursuant
to
this Section 16 or pursuant to Section 15. The Purchaser
may terminate the Seller as servicer pursuant to this Section 16 without
cause if the Purchaser provides notice to Seller 15 days prior to such
termination and pays to the Seller a termination fee based on the fair market
value of the related servicing rights as mutually agreed to between the Seller
and the Purchaser. Upon written request from the Purchaser in connection with
any such termination, the Seller shall prepare, execute and deliver, any and
all
documents and other instruments, place in the Purchaser’s possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Seller’s sole expense. The Seller agrees
to cooperate with the Purchaser and such successor in effecting the termination
of the Seller’s responsibilities and rights hereunder as servicer, including,
without limitation, the transfer to such successor for administration by it
of
all cash amounts or Permitted Investments which shall at the time be credited
by
the Seller to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
SECTION
17. Successor
to the Seller. Prior to termination of Seller’s responsibilities
and duties under this Agreement pursuant to Section 12, 15 or 16, the
Purchaser shall (i) succeed to and assume all of the Seller’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 Seller as 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 Seller’s duties,
responsibilities and liabilities as servicer under this Agreement should be
terminated pursuant to the aforementioned Sections, the Seller 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 Seller as servicer pursuant to the aforementioned
Sections shall not become effective until a successor shall be appointed
pursuant to this Section 17 and shall in no event relieve the Seller of the
representations and warranties made pursuant to Subsections 7.01 and 7.02 and
the remedies available to the Purchaser under Subsection 7.03, 7.04 or 7.05,
it
being understood and agreed that the provisions of such Subsections 7.01, 7.02,
7.03, 7.04 and 7.05 shall be applicable to the Seller notwithstanding any such
resignation or termination of the Seller, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller 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 Seller, with like
effect as if originally named as a party to this Agreement provided, however,
that such successor shall not assume, and Seller shall indemnify such successor
for, any and all liabilities arising out of the Seller’s acts as servicer. Any
termination of the Seller as servicer pursuant to Section 12, 15 or 16
shall not affect any claims that the Purchaser may have against the Seller
arising prior to any such termination or resignation or remedies with respect
to
such claims.
The
Seller shall timely deliver to the successor the funds in the Custodial Account
and the Escrow Account and the Mortgage Files and related documents and
statements held by it hereunder and the Seller shall account for all funds.
The
Seller 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 Seller as servicer, including making any transfers on the
MERS System.. The successor shall make arrangements as it may deem appropriate
to reimburse the Seller for amounts the Seller actually expended as servicer
pursuant to this Agreement which the successor is entitled to retain hereunder
and which would otherwise have been recovered by the Seller 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 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.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
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:
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxxxxx
(ii) if
to the Seller:
Opteum
Financial Services, LLC
W.
000 Xxxxxxx Xxxx
Xxxxxxx,
Xxx Xxxxxx
00000
Attn:______________________________
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 which is prohibited or which is held to be void or unenforceable
shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is 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. GOVERNING LAW; SUBMISSION TO JURISDICTION. THE
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS (EXCEPT FOR SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) 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.
EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION
20;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
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. In the event, for any reason, any transaction contemplated
herein is construed by any court or regulatory authority as a borrowing rather
than as a sale, the Seller and the Purchaser intend that the Purchaser or its
assignee, as the case may be, shall have a perfected first priority security
interest in the Mortgage Loans, the Custodial Account and the proceeds of any
and all of the foregoing (collectively, the “Collateral”), free and clear of
adverse claims. In such case, the Seller shall be deemed to have hereby granted
to the Purchaser or its assignee, as the case may be, a first priority security
interest in and lien upon the Collateral, free and clear of adverse claims.
In
such event, the related Confirmation and this Agreement shall constitute a
security agreement, the Purchaser’s custodian shall be deemed to be an
independent custodian for purposes of perfection of the security interest
granted to the Purchaser or its assignee, as the case may be, and the Purchaser
or its assignee, as the case may be, shall have all of the rights of a secured
party under applicable law.
SECTION
25. Successors
and Assigns. This Agreement shall bind and inure to the benefit
of and be enforceable by the Seller and the Purchaser and the respective
successors and assigns of the Seller and the Purchaser. 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 and such Purchaser, and a separate and
distinct Agreement between the Seller 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, 7.04 or 7.05 shall be retained solely by
the
Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION
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. General
Interpretive Principles. For purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to
such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
29. Nonsolicitation. The
Seller covenants and agrees that it 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 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 to request the refinancing of the related Mortgage Loan.
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 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.
Without
limiting the generality of the foregoing, the Seller shall cooperate with the
Purchaser in connection with any Whole Loan Transfer or Securitization
Transaction contemplated by the Initial Purchaser pursuant to Section 12
hereof. In such connection, the Seller shall (a) execute any agreement in
accordance with the provisions of Section 12, and (b) provide to the
Initial Purchaser or any prospective purchaser: (i) any and all information
and
appropriate verification of information, whether through letters of its auditors
and counsel or otherwise, as the Initial Purchaser shall reasonably request;
and
(ii) such representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Seller
as
are reasonably believed necessary by the Initial Purchaser in connection with
such transactions. The requirement of the Seller pursuant to (ii) above shall
terminate on the final Reconstitution Date. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Initial
Purchaser in writing of the estimated amount of such expense. The Initial
Purchaser shall reimburse the Seller for any such expense following its receipt
of appropriate details thereof.
SECTION
32. Entire
Agreement.
This
Agreement constitutes 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.
SECTION
33. Third
Party Beneficiary. For purposes of this Agreement any master
servicer shall be considered a third party beneficiary to this Agreement
entitled to all the rights and benefits accruing to any master servicer herein
as if it were a direct party to this Agreement.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
|
OPTEUM
FINANCIAL SERVICES,
LLC
|
|
|
(Seller)
By:
/s/ [Authorized Signatory]_________________________
Name:___________________________________________
Title:____________________________________________
|
|
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Initial
Purchaser)
By:
/s/ [Authorized Signatory]_________________________
Name:___________________________________________
Title:____________________________________________
|
EXHIBIT
1
SELLER’S
OFFICER’S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of Opteum Financial Services, LLC, a Delaware limited liability
company (the “Seller”), and further certify, on behalf of the Seller as
follows:
1. Attached
hereto as Attachment I are a true and correct copy of the Certificate of
Formation and Limited Liability Company Operating Agreement of the Seller as
are
in full force and effect on the date hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed (a) the
Master Mortgage Loan Purchase and Servicing Agreement (the “Purchase
Agreement”), dated as of September 1, 2006, by and between the Seller and
Citigroup Global Markets Realty Corp. (the “Purchaser”); (b) the Confirmation,
dated _____________ 200_, between the Seller and the Purchaser (the
“Confirmation”); and (c) any other document delivered prior hereto or on the
date hereof in connection with the sale and servicing of the Mortgage Loans
in
accordance with the Purchase Agreement and the Confirmation was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
attorney-in-fact, and the signatures of such persons appearing on such documents
are their genuine signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ________________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
______________, 200_. No event has occurred since
___________________, 200_ which has affected the good standing of the Seller
under the laws of the State of ___________.
6. All
of the representations and warranties of the Seller contained in Subsections
7.01 and 7.02 of the Purchase Agreement were true and correct in all material
respects as of the date of the Purchase Agreement and are true and correct
in
all material respects as of the date hereof.
7. The
Seller 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 Purchase Agreement and the related
Confirmation.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated: ______________________
[Seal]
|
OPTEUM
FINANCIAL SERVICES, LLC
(Seller)
By:_________________________________
Name:_______________________________
Title: Vice
President
|
I,
_______________________, Secretary of the Seller, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
[Seal]
|
OPTEUM
FINANCIAL SERVICES, LLC
(Seller)
By:_________________________________
Name:_______________________________
Title: [Assistant]
Secretary
|
EXHIBIT
2
[FORM
OF
OPINION OF COUNSEL TO THE SELLER]
______________________________
(Date)
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
Master
Mortgage Loan Purchase and Servicing Agreement, dated as of ____
1,
200_
|
Gentlemen:
I
have
acted as counsel to Opteum Financial Services, LLC, a Delaware limited liability
company (the “Seller”), in connection with the sale of certain mortgage loans by
the Seller to Citigroup Global Markets Realty Corp. (the “Purchaser”) pursuant
to (i) a Master Mortgage Loan Purchase and Servicing Agreement, dated as of
September 1, 2006, between the Seller and the Purchaser (the “Purchase
Agreement”), and (ii) the Confirmation, dated __________, 200_, between the
Seller and the Purchaser (the “Confirmation”). Capitalized terms not
otherwise defined herein have the meanings set forth in the Purchase
Agreement.
In
connection with rendering this opinion letter, 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:
|
|
A.
|
The
Purchase Agreement;
|
|
|
B.
|
The
Confirmation;
|
|
|
C.
|
The
Seller’s Certificate of Formation and Limited Liability Company Operating
Agreement, as amended to date; and
|
|
|
D.
|
Resolutions
adopted by the Board of Directors of the Seller with specific reference
to
actions relating to the transactions covered by this opinion (the
“Board
Resolutions”).
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Seller, and
upon such other certificates 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:
1. The
Seller has been duly formed and is validly existing and in good standing under
the laws of the State of Delaware with corporate power and authority to own
its
properties and conduct its business as presently conducted by it. The Seller
has
the corporate power and authority to service the Mortgage Loans, and to execute,
deliver, and perform its obligations under the Purchase Agreement and the
Confirmation (sometimes collectively, the “Agreements”).
2. The
Purchase Agreement and the Confirmation have been duly and validly authorized,
executed and delivered by the Seller.
3. The
Purchase Agreement and the Confirmation constitute valid, legal and binding
obligations of the Seller, enforceable against the Seller in accordance with
their respective terms.
4. No
consent, approval, authorization or order of any state or federal court or
government agency or body is required for the execution, delivery and
performance by the Seller of the Purchase Agreement and the Confirmation, or
the
consummation of the transactions contemplated by the Purchase Agreement and
the
Confirmation, except for those consents, approvals, authorizations or orders
which previously have been obtained.
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Purchase
Agreement and the Confirmation, nor the fulfillment of the terms of or the
consummation of any other transactions contemplated in the Purchase Agreement
and the Confirmation will result in a breach of any term or provision of the
Certificate of Formation and Limited Liability Company Operating Agreement
of
the Seller, or, to the best of my knowledge, will conflict with, result in
a
breach or violation of, or constitute a default under, (i) the terms of any
indenture or other agreement or instrument known to me to which the Seller
is a
party or by which it is bound, (ii) any State of Delaware or federal statute
or
regulation applicable to the Seller, or (iii) any order of any State of Delaware
or federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller, except in any such case where the default,
breach or violation would not have a material adverse effect on the Seller
or
its ability to perform its obligations under the Purchase
Agreement.
6. There
is no action, suit, proceeding or investigation pending or, to the best of
my
knowledge, threatened against the Seller which, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
Purchase Agreement or which would be likely to impair materially the ability
of
the Seller to perform under the terms of the Purchase Agreement.
7. The
sale of each Mortgage Note and Mortgage as and in the manner contemplated by
the
Purchase Agreement is sufficient fully to transfer to the Purchaser all right,
title and interest of the Seller thereto as noteholder and
mortgagee.
8. The
Assignments of Mortgage are in recordable form and upon completion will be
acceptable for recording under the laws of the State of Delaware. When endorsed,
as provided in the Agreement, the Mortgage Notes will be duly endorsed under
Delaware law.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have assumed that all parties to the Agreements other than the Seller have
all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) 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 (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements 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 (a) provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public policy or
(b)
Section 19 of the Purchase Agreement.
C. I
have assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which 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
admitted to practice in the State of ___________, and I render no opinion herein
as to matters involving the laws of any jurisdiction other than the State of
_________ and the Federal laws of the United States of America.
Very truly yours,
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 Citigroup Global Markets Realty Corp. from the Seller named below
pursuant to that certain Master Mortgage Loan Purchase and Servicing Agreement,
dated as of _____ 1, 200_, 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:_____________________________________
II. Certification
of Release
The
Seller named below hereby certifies to Citigroup Global Markets Realty Corp.
that, as of the Date and Time of Sale of the above mentioned Mortgage Loans
to
Citigroup Global Markets Realty Corp., 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:_____________________________________
|
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 200_, Opteum Financial Services, LLC (“Seller”) as the
Seller under that certain Master Mortgage Loan Purchase and Servicing Agreement,
dated as of September 1, 2006 (the “Agreement”) does hereby sell, transfer,
assign, set over and convey to Citigroup Global Markets Realty Corp. 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 Mortgage Files and all rights and obligations arising under the
documents contained therein including the right to any Prepayment Charges
payable with respect thereto. Pursuant to Subsection 6.03 of the
Agreement, the Seller has delivered to the Purchaser the documents for each
Mortgage Loan to be purchased as set forth in 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, in trust, 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 and in the
Confirmation, dated _______________, 200__, are true and correct as of the
date
hereof, and that all statements made in the Seller’s Officer’s Certificate and
all Attachments thereto remain complete, true and correct in all respects as
of
the date hereof:
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
|
OPTEUM
FINANCIAL SERVICES, LLC
(Seller)
|
|
|
By:__________________________________
Name:________________________________
Title:_________________________________
|
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
Purchaser:
|
1.
|
The
following documents (collectively, the “Mortgage Loan
Documents”)
|
|
(a)
|
the
original Mortgage Note bearing all intervening endorsements necessary
to
show a complete chain of endorsements from the original payee to
the
applicable Seller, 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)
|
with
respect to each Mortgage Loan which is not a MERS Mortgage Loan,
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)
|
for
each Mortgage Loan which is not a MERS Mortgage Loan, the original
recorded Mortgage with evidence of recording thereon, and in the
case of
each MERS Mortgage Loan, the original Mortgage, noting the presence
of the
MIN for that Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, or
if such
Mortgage Loan was not a MOM Loan at origination, the original Mortgage
and
the assignment to MERS, with evidence of recording thereon.. If in
connection with any Mortgage Loan, the applicable 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 Purchaser, (i) in the case
of a
delay caused by the public recording office, a copy of such Mortgage
certified by the applicable 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;
|
|
(e)
|
originals
of each assumption, modification, consolidation or extension agreement,
if
any;
|
|
(f)
|
except
in the event that the original Mortgage is made to MERS, 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 to MERS, if the Mortgage Loan
is
registered on the MERS System), 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 applicable 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 Purchaser upon receipt thereof by the party delivering
the Officer’s Certificate or by the applicable 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 original 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 Xxxxxx Xxx
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;
|
|
(i)
|
original
of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any;
and
|
|
(j)
|
the
original Primary Insurance Policy, if the Loan-to-Value Ratio is
greater
than 80.00%.
|
|
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.
|
|
16.
|
Amortization
schedule, if available.
|
|
17.
|
Payment
history.
|
|
18.
|
Flood
Insurance policy, if applicable.
|
|
19.
|
Tax
Service Contract.
|
|
20.
|
Flood
Service Contract.
|
EXHIBIT
6
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:_____________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
September 1, 2006, we hereby authorize and request you to establish an account,
as a Custodial Account, to be designated as “Opteum Financial Services, LLC 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.
|
OPTEUM
FINANCIAL SERVICES, LLC
(Seller)
|
|
|
By:_____________________________________________
Name:___________________________________________
Title:____________________________________________
Date:____________________________________________
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. 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:____________________________________________
|
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:________________________________
(the
“Depository”)
As
Seller
under the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
September 1, 2006, we hereby authorize and request you to establish an account,
as an Escrow Account, to be designated as “Opteum Financial Services, LLC 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.
|
OPTEUM
FINANCIAL SERVICES, LLC
(Seller)
|
|
|
By:_____________________________________________
Name:___________________________________________
Title:____________________________________________
Date:____________________________________________
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. 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:____________________________________________
|
EXHIBIT
8
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 this Agreement, all applicable laws, rules
and
regulations and the terms of the Mortgage Loan Documents, 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.
Consistent
with the terms of this Agreement, the Seller 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
Seller’s reasonable and prudent determination such waiver, modification,
postponement or indulgence will cure a default by the mortgagor or prevent
a
reasonable foreseeable default, and is not materially adverse to the Purchaser;
provided, however, that the Seller shall not permit any waiver, modification,
postponement or indulgence 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 Seller
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 Seller, the
Purchaser shall furnish the Seller with any powers of attorney and other
documents necessary or appropriate to enable the Seller to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Seller may not waive
any
Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i) the Seller determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the
value of such Prepayment Charge and the Mortgage Loan, and the waiver of such
Prepayment Charge is standard and customary in servicing similar Mortgage Loans
(including the waiver of a Prepayment Charge in connection with a refinancing
of
the Mortgage Loan related to a default or a reasonably foreseeable default)
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
subsequent changes in applicable law. In no event shall the Seller
waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan
that is not related to a default or a reasonably foreseeable
default. If the Seller waives or does not collect all or a portion of
a Prepayment Charge relating to a Principal Prepayment in full or in part due
to
any action or omission of the Seller, other than as provided above, the Seller
shall deposit the amount of such Prepayment Charge (or such portion thereof
as
had been waived for deposit) into the Custodial Account at the time of such
prepayment for distribution in accordance with the terms of this
Agreement.
The
Servicer shall notify MERS of the ownership interest of 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, Purchaser may direct Servicer to cause any MOM Loan to be
deactivated from the MERS System or to change the Pool Field designation of
a
Mortgage Loan.
In
servicing and administering the Mortgage Loans, the Seller 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 mortgage loan servicing institutions and the Purchaser’s
reliance on the Seller.
The
Seller will furnish, with respect to each Mortgage Loan, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information on its borrower credit files to Equifax, Experian, and
Trans Union Credit Information Company, on a monthly
basis.
Subsection
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Seller 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 and the
terms and provisions of any related Primary Insurance Policy or LPMI Policy,
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 Seller 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.
Subsection
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Seller shall use its best efforts, consistent with the procedures that the
Seller 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 Seller 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 Seller 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
Seller 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 Seller 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 Seller shall commence foreclosure proceedings, provided
that prior to commencing foreclosure proceedings, the Seller shall notify the
Purchaser in writing of the Seller’s intention to do so, and the Seller shall
not commence foreclosure proceedings if the Purchaser objects to such action
within ten (10) Business Days of receiving such notice. The Seller
shall notify the Purchaser in writing of the commencement of foreclosure
proceedings and shall provide monthly reports to the Purchaser or its designee
regarding the status of such Mortgage Loans from the time such Mortgage Loan
becomes 90 days delinquent through the liquidation of such Mortgage
Loan. The Seller shall be responsible for all costs and expenses
incurred by it in any such foreclosure 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 Seller has received actual notice of, or has
actual knowledge of, the presence of any toxic or hazardous substance on the
related Mortgaged Property the Seller 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 Seller 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
(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 Seller, subject to the Seller’s right to be reimbursed
therefor from the Custodial Account as provided in
Subsection 11.05(vii).
If
the
Seller 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 Seller shall take
such
action as it deems to be in the best economic interest of the Purchaser;
provided that the Seller shall not expend more than $2,000 with respect to
the
foregoing without the consent of the Purchaser. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Seller, subject
to
the Seller’s right to be reimbursed therefor from the Custodial Account as
provided in Subsection 11.05(vii).
(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 Seller 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 if not in connection with a Final
Recovery Determination, to the Due Date prior to the Distribution Date on which
such amounts are to be distributed; 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 Seller 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 Seller pursuant to
Subsection 11.05(iii).
Subsection
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller 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 6.
The
Seller 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, including Principal Prepayments received
during the related Prepayment Period, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including all Prepayment
Charges received during the related Prepayment Period or payable pursuant to
Subsection 11.01;
(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 loan documents or applicable
law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller’s normal servicing procedures, the
loan documents or applicable law;
(vi) with
respect to any Distribution Date following the date of any Securitization
Transaction, all Monthly Advances;
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with
Subsections 7.03 or 7.05 and all amounts required to be deposited by the
Seller in connection with Subsection 7.04 or 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 Seller pursuant to Subsection 11.11
in connection with the deductible clause in any blanket hazard insurance
policy. Such deposit shall be made from the Seller’s own funds,
without reimbursement therefor;
(ix) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Subsection 11.13;
(x) any
amounts required to be deposited in the Custodial Account pursuant to
Subsections 11.19, 11.20 or 11.25;
(xi) with
respect to any Distribution Date following the date of any Securitization
Transaction, with respect to each Principal Prepayment in full or in part
received during the related Prepayment Period, an amount (to be paid by the
Seller out of its own funds without reimbursement therefor) which, when added
to
all amounts allocable to interest received in connection with such Principal
Prepayment, equals one month’s interest on the amount of principal so prepaid at
the Mortgage Interest Rate; provided, however, that in no event shall the
aggregate of deposits made by the Seller pursuant to this clause (xi) exceed
the
aggregate amount of the Seller’s servicing compensation received in the calendar
month in which such deposits are required; and
(iv) any
amounts required to be deposited pursuant to Subsection 11.33 in connection
with
any losses realized on Permitted Investments with respect to funds held in
the
Custodial Account;
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
Seller 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 Seller and the Seller shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to
Subsection 11.05(iii). The Seller shall give notice to the
Purchaser of the location of the Custodial Account when established and prior
to
any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $100,000 (other than any
Buydown Funds not yet due to the Purchaser) 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 Seller
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
Seller 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) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Seller’s right thereto shall be prior to the
rights of Purchaser, except that, where the Seller is required to repurchase
a
Mortgage Loan pursuant to Subsection 7.03 or 7.05, the Seller’s right to
such reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03 or 7.05, and all other amounts
required to be paid to the Purchaser with respect to such Mortgage
Loans;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Seller’s right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Seller
from
the Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of such reimbursement, the Seller’s right thereto shall be
prior to the rights of the Purchaser, except that, where the Seller is required
to repurchase a Mortgage Loan pursuant to Subsection 7.03 or 7.05, the
Seller’s right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to Subsection 7.03 or 7.05 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 11.22 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 7.05 all amounts received thereon and not distributed as
of the date on which the related Repurchase Price is determined;
(vi) to
reimburse itself for any Monthly Advance previously made which the Seller has
determined to be a Nonrecoverable Monthly Advance;
(vii) to
pay,
or to reimburse itself 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;
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Seller 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
Seller 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
Seller 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 7.
The
Seller 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 Seller 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 Seller 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 Seller 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 Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, and comparable items, (ii)
to
reimburse the Seller for any Servicing Advance made by the Seller 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 Seller, 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; Maintenance of Primary Insurance Policies
and LPMI Policies; Collections Thereunder.
(a) With
respect to each Mortgage Loan, the Seller 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 Primary Insurance Policy and LPMI Policy premiums and 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 Seller 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 Seller shall
determine that any such payments are made by the Mortgagor at the time they
first become due. The Seller 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 Servicing Advances
to
effect such payments and such amounts shall not be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. The obligation of the Seller to make such
Servicing Advances is mandatory, notwithstanding any other provision of this
Agreement, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith; provided
that, notwithstanding anything herein to the contrary, no Servicing Advance
shall be required to be made hereunder by the Seller if such Servicing Advance
would, if made, constitute a Nonrecoverable Servicing Advance. The
determination by the Seller that it has made a Nonrecoverable Servicing Advance
or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officers’ Certificate
delivered to the Purchaser.
The
Seller shall maintain in full force and effect, a Primary Insurance Policy,
issued by a Qualified Insurer, with respect to each Mortgage Loan for which
such
coverage is required. Such coverage shall be maintained until the
Loan-to-Value Ratio of the related Mortgage Loan is reduced to that amount
for
which Xxxxxx Xxx no longer requires such insurance to be
maintained. The Seller will not cancel or refuse to renew any Primary
Insurance Policy in effect on the related Closing Date that is required to
be
kept in force under this Agreement unless a replacement Primary Insurance Policy
for such cancelled or non- renewed policy is obtained from and maintained with
a
Qualified Insurer. The Seller shall not take any action which would
result in non-coverage under any applicable Primary Insurance Policy or LPMI
Policy of any loss which, but for the actions of the Seller, would have been
covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Subsection 11.19,
the Seller shall promptly notify the insurer under the related Primary Insurance
Policy or LPMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such policy and shall take all actions which
may
be required by such insurer as a condition to the continuation of coverage
under
the Primary Insurance Policy or LPMI Policy. If such Primary
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Seller shall obtain a replacement Primary Insurance Policy as
provided above.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy or LPMI Policy in a timely fashion in accordance with
the terms of such policies and, in this regard, to take such action as shall
be
necessary to permit recovery under any Primary Insurance Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Pursuant to
Subsection 11.04, any amounts collected by the Seller under any Primary
Insurance Policy or LPMI Policy shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Subsection 11.05.
Subsection
11.09 Transfer
of Accounts.
The
Seller 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.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
hazard insurance policy in a timely fashion in accordance with the terms of
such
policies and, in this regard, to take such action as shall be necessary to
permit recovery under any hazard insurance policy. The Seller 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 and (ii) the outstanding principal
balance of the Mortgage Loan plus, with respect to any Second Lien Mortgage
Loan, the outstanding principal balance of the First Lien Mortgage Loan, 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 Seller 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 and (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 Seller 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 Mortgage Loan plus, with respect to any Second Lien
Mortgage Loan, the outstanding principal balance of the First Lien Mortgage
Loan, 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 Seller 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 Seller’s normal servicing procedures, shall be deposited in
the Custodial Account, subject to withdrawal pursuant to
Subsection 11.05. Any cost incurred by the Seller 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 Seller or 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 Seller, or upon request to the Purchaser, and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
of, or material change in, coverage to the Seller. The Seller shall
not interfere with the Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent, provided, however, that the Seller 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.
Subsection
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller shall obtain and maintain a mortgage impairment or blanket
policy issued by an issuer that has a Best rating of A:X insuring against hazard
losses on all 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 Seller 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 Seller 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 servicer of the Mortgage
Loans, the Seller 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. The Seller shall deliver 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 days prior written notice to the Purchaser.
Subsection
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Seller 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 Xxxxxx Mae and Xxxxxxx Mac if the Seller
were servicing the Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac, as the case
may
be, 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 Seller against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
persons. Such fidelity bond and errors and omissions insurance policy
shall also protect and insure the Seller against losses in connection with
the
failure to maintain any insurance policies required pursuant to this Agreement
and the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of
this Subsection 11.12 requiring the fidelity bond and errors and omissions
insurance shall diminish or relieve the Seller 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 Xxxxxx Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac
in
the Xxxxxxx Xxx Xxxxxxx’ and Servicers’ Guide if the Seller were servicing the
Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac, as the case may
be. Upon request of the Purchaser, the Seller 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. The Seller shall provide copies of the fidelity bond and
insurance policy at each renewal of such policy.
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 Seller 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 within three years
or
such other period as may be permitted under Section 860G(a)(8) of the
Code.
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 sub-account of the Custodial Account for each REO
Property.
The
Seller shall deposit or cause to be deposited, on a daily basis in each
Custodial sub-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 Custodial sub-account. On or before each
Determination Date, the Seller shall withdraw from each Custodial sub-account
and deposit into the Custodial Account the net income from the REO Property
on
deposit in the Custodial sub-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.
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 Seller,
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 Custodial sub-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 5.01.
Subsection
11.14 Distributions.
On
each
Distribution Date, the Seller 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; plus (ii) all Monthly Advances, if
any, which the Seller is obligated to distribute pursuant to
Subsection 11.21, minus (iii) any amounts attributable to Principal
Prepayments received after the related Prepayment Period, (iv) any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the preceding Determination Date and (iv) any Buydown Funds held
for distribution to the Purchaser on a subsequent Distribution
Date.
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 Seller or by check mailed to the address of the
Purchaser.
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Seller 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 percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be
paid by the Seller to the Purchaser on the date such late payment is made and
shall cover the period commencing with the day following the day such payment
was due 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 Seller of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Seller.
Subsection
11.15 Remittance
Reports and Surveillance Data.
(a) No
later
than the fifth Business Day of each month, the Seller shall furnish to the
Purchaser or its designee a computer tape containing, and a hard copy of,
monthly data in a form mutually acceptable to the Purchaser and the
Seller. On the Business Day following each Determination Date, the
Seller shall deliver to the Purchaser or its designee by telecopy (or by such
other means as the Seller and the Purchaser may agree from time to time) a
computer tape 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
Seller 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.
(b) In
addition, no later than the fifth Business Day of each month, the Seller shall
furnish to the Purchaser or its designee an electronic copy and hard copy of
the
surveillance data set forth on Schedule A attached hereto.
Subsection
11.16 Statements
to the Purchaser.
Not
later
than fifteen days after each Distribution Date, the Seller shall forward to
the
Purchaser or its designee a statement prepared by the Seller, in the form of
Xxxxxx Mae’s Guaranteed Mortgage Pass-Through Program, 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.
In
addition, not more than sixty days after the end of each calendar year, the
Seller 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) a listing of the principal balances
of the Mortgage Loans outstanding at the end of such calendar year.
The
Seller 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
Seller 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.
Subsection
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Subsection 11.13, with respect to
any REO Property, the Seller shall furnish to the Purchaser a statement (in
a
form mutually agreeable to the Purchaser and the Seller) 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, 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 Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property
in
support of any action taken by the Seller in regard to such
liquidation.
Subsection
11.19 Assumption
Agreements.
The
Seller 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 Seller shall not exercise
any such rights if prohibited by law from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Insurance Policy or LPMI Policy, if any. If the Seller reasonably
believes it is unable under applicable law to enforce such “due-on-sale” clause,
the Seller 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 applicable law requires a release of the Mortgagor,
the Seller, with the prior written consent of the insurer under the Primary
Insurance Policy or LPMI Policy, if any, 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 Seller
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 Seller
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
Seller 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.
Notwithstanding
the foregoing paragraphs of this subsection or any other provision of this
Agreement, the Seller 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 Seller 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 Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification of a servicing officer of the Seller (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 Seller and the Seller 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 Seller 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 Seller, 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 Seller shall maintain the
fidelity bond insuring the Seller 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, including for this purpose collection under any Primary Insurance Policy
or LPMI Policy, the Purchaser shall, upon request of the Seller 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 to the
Seller. Such servicing receipt shall obligate the Seller to return
the related Mortgage documents to the Purchaser when the need therefor by the
Seller 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 Seller 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 Seller.
Subsection
11.21 Monthly
Advances by the Seller.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date
following the date of a Securitization Transaction, the Seller shall deposit
in
the Custodial Account an amount equal to all payments not previously advanced
by
the Seller, whether or not deferred pursuant to Subsection 11.01, of
principal (due after the Cut-off Date) and interest not allocable to the period
prior to the Cut-off Date, at the Mortgage Interest Rate net of the Servicing
Fee, which were due on a Mortgage Loan and delinquent at the close of business
on the related Determination Date.
(b) The
obligation of the Seller to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any
Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Seller that
it has made a Nonrecoverable Monthly Advance or that any proposed Monthly
Advance, if made, would constitute a Nonrecoverable Monthly Advance, shall
be
evidenced by an Officers’ Certificate delivered to the Purchaser.
Subsection
11.22 Servicing
Compensation.
As
compensation for its services hereunder, the Seller 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 Seller’s Servicing Fee. Additional servicing compensation in
the form of assumption fees, as provided in Subsection 11.19, and late
payment charges or otherwise shall be retained by the Seller to the extent
not
required to be deposited in the Custodial Account. The Seller 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 Seller 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
11.23 Special
Remittance Provisions for Principal Prepayments.
The
Purchaser shall have the right to direct the Servicer to modify the remittance
cycle applicable to Principal Payments received on any Mortgage Loan by
remitting to the Purchaser on any Distribution Date all Principal Prepayments
in
full received by the Servicer prior to the related Determination Date, plus
any
interest collected on such Principal Prepayments, to the extent not previously
remitted to the Purchaser. In connection with the foregoing, the
Servicer shall not be required to pay the amount set forth in
Subsection 11.04 (xi) with respect to the related Mortgage Loans and the
report by the Servicer shall reflect such revised remittance cycle.
Subsection
11.24 Statement
as to Compliance.
(a) The
Seller will deliver to the Purchaser not later than February 28th of each
year, an
Officers’ Certificate (each, an “Annual Statement of Compliance”) stating, as to
each signatory thereof, that (i) a review of the activities of the Seller during
the preceding year and of performance under this Agreement has been made under
such officers’ supervision and (ii) to the best of such officers’ knowledge,
based on such review, the Seller has fulfilled all of its obligations under
this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. Copies of such statement shall be
provided by the Purchaser to any Person identified as a prospective purchaser
of
the Mortgage Loans.
(b) The
Seller shall indemnify and hold harmless the Master Servicer and its officers,
directors, agents and affiliates 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 Seller or any of its officers, directors, agents or affiliates of its
obligations under this Subsection 11.24 and Subsection 11.25 or the
negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then the Seller agrees that
it shall contribute to the amount paid or payable by the Master Servicer as
a
result of the losses, claims, damages or liabilities of the Master Servicer
in
such proportion as is appropriate to reflect the relative fault of the Master
Servicer on the one hand and the Seller on the other in connection with a breach
of the Seller’s obligations under this Subsection 11.24 or Subsection 11.25
or the Seller’s negligence, bad faith or willful misconduct in connection
therewith.
Subsection
11.25 Independent
Public Accountants’ Servicing Report.
Not
later
than February 28th of each year, the Seller at its expense shall cause a firm
of
independent public accountants (which may also render other services to the
Seller) which is a member of the American Institute of Certified Public
Accountants to furnish a statement 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 except for such significant exceptions
or
errors in records that, in the opinion of such firm, the Uniform Single
Attestation Program for Mortgage Bankers requires it to report. Copies of such
statement shall be provided by the Purchaser to any Person identified as a
prospective purchaser of the Mortgage Loans.
Subsection
11.26 Notification
of Adjustments.
On
each
Adjustment Date, the Seller shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note. The Seller shall execute and deliver the notices
required by each Mortgage and Mortgage Note regarding interest rate adjustments.
The Seller also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments and
the
Seller’s methods of implementing such interest rate adjustments. Upon the
discovery by the Seller or the Purchaser that the Seller has failed to adjust
a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
Subsection
11.27 Access
to Certain Documentation.
The
Seller 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 Seller 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
Seller. In addition, access to the documentation will be provided to
the Purchaser and any Person identified to the Seller by the Purchaser without
charge, upon reasonable request during normal business hours at the offices
of
the Seller.
Subsection
11.28 Reports
and Returns to be Filed by the Seller.
The
Seller 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
11.29 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
11.30 Superior
Liens.
With
respect to each Second Lien Mortgage Loan, 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 Mortgagor 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 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 in
its
reasonable good faith judgment that such advance will be recoverable from
Liquidation Proceeds on the related Mortgage Loan. The Seller shall
thereafter take such action as is necessary to recover the amount so
advanced.
Subsection
11.31 Officer’s
Certificates.
Not
later
than the end of each calendar year, the Seller shall deliver to the Purchaser
or
its designee an Officer’s Certificate stating that (i) the Seller is an approved
seller/servicer for Xxxxxx Mae and Xxxxxxx Mac in good standing and is a HUD
approved mortgagee pursuant to Section 203 of the National Housing Act, and
that no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with Xxxxxx Mae, Xxxxxxx
Mac or HUD eligibility requirements or which would require notification to
Xxxxxx Mae, Xxxxxxx Mac or HUD and (ii) in the event any Mortgage Loan is a
MERS
Mortgage Loan, the Seller is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans for as long as such Mortgage
Loans
are registered with MERS. In addition, the Seller shall deliver to
the Purchaser or its designee a notice in the event that the Seller fails to
meet such eligibility requirements.
Subsection
11.32 Investment
of Funds in the Collection Account.
The
Seller may direct any depository institution maintaining the Custodial Account
to invest the funds on deposit in such account, (each such account, for the
purposes of this Subsection 11.33, an “Investment Account”). All
investments pursuant to this Subsection 11.33 shall be in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand no later than the Business Day immediately preceding the date on
which
such funds are required to be withdrawn from such account pursuant to this
Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. All income and gain realized from the investment of funds
deposited in the Custodial Account shall be for the benefit of the Servicer
and
shall be subject to its withdrawal in accordance with Subsection 11.04. The
Servicer shall deposit in the Custodial Account the amount of any loss incurred
in respect of any such Permitted Investment immediately upon realization of
such
loss.
Subsection
11.33 Subservicing
Agreements Between the Seller and Subservicers.
The
Seller, as servicer, may arrange for the subservicing of any Mortgage Loan
by a
Subservicer pursuant to a Subservicing Agreement; provided that such
subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Each
Subservicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Subservicer to perform
its
obligations hereunder and under the Subservicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Xxx approved mortgage servicer. Notwithstanding the
provisions of any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Seller or a
Subservicer or reference to actions taken through the Seller or otherwise,
the
Seller shall remain obligated and liable to the Purchaser and its successors
and
assigns for the servicing and administration of the Mortgage Loans in accordance
with the provisions of this Agreement without diminution of such obligation
or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Seller alone were servicing and
administering the Mortgage Loans. Every Subservicing Agreement entered into
by
the Seller shall contain a provision giving the successor servicer the option
to
terminate such agreement in the event a successor servicer is
appointed. All actions of each Subservicer performed pursuant to the
related Subservicing Agreement shall be performed as an agent of the Seller
with
the same force and effect as if performed directly by the Seller.
For
purposes of this Agreement, the Seller shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Seller.
Subsection
11.34 Successor
Subservicers.
Any
Subservicing Agreement shall provide that the Seller shall be entitled to
terminate any Subservicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Subsection 11.34. Any Subservicing
Agreement shall include the provision that such agreement may be immediately
terminated by any successor to the Seller without fee, in accordance with the
terms of this Agreement, in the event that the Seller (or any successor to
the
Seller) shall, for any reason, no longer be the servicer of the related Mortgage
Loans (including termination due to an Event of Default).
Subsection
11.35 No
Contractual Relationship Between Subservicer and Purchaser.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Seller alone and the Purchaser shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Subsection
11.34.
Subsection
11.36 Assumption
or Termination of Subservicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Seller hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Seller’s rights and obligations under any Subservicing Agreement then
in force between the Seller and a Subservicer shall be assumed simultaneously
by
such successor servicer without act or deed on the part of such successor
servicer; provided, however, that any successor servicer may terminate the
Subservicer.
The
Seller shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Subservicing Agreement and an accounting of amounts collected and held by it
and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Subservicing Agreements to the assuming party.
SCHEDULE
A
SURVEILLANCE
DATA
|
Name
|
Type
|
Definition
|
|
LoanNo
|
Double
|
Servicer
Loan
Number
|
|
BPOSource
|
Text
|
Source
description of BPO
value
|
|
BPODt
|
Date/Time
|
Date
of BPO
source
|
|
BPOValue
|
Currency
|
BPO
value
|
|
CurrBal
|
Currency
|
Current
UPB
|
|
Rt
|
Double
|
Current
Interest
Rate
|
|
PI
|
Currency
|
Current
Principal and Interest
Payment
|
|
TI
|
Currency
|
Current
Escrow
Payment
|
|
PITI
|
Currency
|
Current
total mothly
payment
|
|
DueDt
|
Date/Time
|
Date
of next payment
due
|
|
EscrowBal
|
Currency
|
Escrow
funds collected from
mortgagor, not yet disbursed
|
|
EscrowAdv
|
Currency
|
Escrow
Advance
Amount
|
|
SuspBal
|
Currency
|
Suspense
Balance - unapplied
funds
|
|
CorpAdv
|
Currency
|
Corporate
advance
balance
|
|
LCBal
|
Currency
|
Late
Charges
unpaid
|
|
PoolSchBal
|
Currency
|
Current
UPB per Citi
GL
|
|
PoolSchDue
|
Date/Time
|
Due
date per
Citi
|
|
LastPmtRcd
|
Date/Time
|
Last
payemnt received
date
|
|
FPIndicator
|
Text
|
Force
placed insurance
indicator
|
|
FB_Start_Date
|
Date/Time
|
Forebearance
plan start
date
|
|
FB_End_Date
|
Date/Time
|
Forebearance
plan end
date
|
|
FB_Due_Date
|
Date/Time
|
Forebearance
plan next payment due
date
|
|
FB_PI
|
Currency
|
Forebearance
plan principal and
interest payment
|
|
LossMitStatus
|
Text
|
Loss
mitigation
status
|
|
ProcessStop
|
Text
|
Process
stop
code
|
|
PersonCode
|
Text
|
Person
code
|
|
OthLienBal
|
Currency
|
Other
Lien
Balance
|
|
Reason
For
Default
|
Text
|
Stated
reason for payment
default
|
|
RFD
Date
|
Date/Time
|
Date
reason for default was
obtained from mortgagor
|
|
Servicer
File
Date
|
Date/Time
|
Cutoff
date of servicer
file
|
|
Current
Occupancy
Status
|
Text
|
Current
occupancy
status
|
|
Property
Condition
|
Text
|
Property
Conditon
|
|
Last
Inspection
Date
|
Date/Time
|
Date
of last property
inspection
|
|
FCData
|
|
|
|
FC
Status
|
Text
|
Status
of FC
proceeding
|
|
Start_Date
|
Date/Time
|
Start
date of FC
process
|
|
Referral_Date
|
Date/Time
|
Date
file referred to
Attorney
|
|
First_Legal_Date
|
Date/Time
|
Date
complaint was
filed
|
|
Judgement_Date
|
Date/Time
|
Date
judgement was
entered
|
|
Publication_Date
|
Date/Time
|
Date
of sale date
publication
|
|
ProjSale_Date
|
Date/Time
|
Projected
date of foreclosure
sale
|
|
Sale_Date
|
Date/Time
|
Actual
date that foreclosrue sale
is held
|
|
Redemption_Exp_Date
|
Date/Time
|
Date
redemption will
expire
|
|
FC_Results
|
Text
|
Foreclosure
sale
results
|
|
FC_Bid_Amount
|
Double
|
Approved
foreclosure bid
amount
|
|
REOData
|
|
|
|
SubServicerID
|
Text
|
REO
servicer
identification
|
|
AcqDt
|
Date/Time
|
Date
REO servicer acquired
loan
|
|
REO
Loan
Number
|
Text
|
REO
servicer loan
number
|
|
ClosDt
|
Date/Time
|
Date
closing
held
|
|
ContDt
|
Date/Time
|
Date
of sales
contract
|
|
CurListDt
|
Date/Time
|
Date
that current list price
became effective
|
|
CurListPx
|
Double
|
Amount
of current list
price
|
|
EstClosDt
|
Date/Time
|
Estimated
sales closing
date
|
|
EvictStart
|
Date/Time
|
Date
eviction
began
|
|
HazClaimAmt
|
Double
|
Current
hazard claim
amount
|
|
HazClaimSubDt
|
Date/Time
|
Date
current hazzard claim was
submitted
|
|
InitBPOAsIs
|
Double
|
Initial
BPO as is
value
|
|
InitBPOAsRep
|
Double
|
Initial
BPO repaired
value
|
|
InitBPOCTC
|
Double
|
Initial
BPO cost to cure/repair
amount
|
|
InitBPORecDt
|
Date/Time
|
Initial
BPO received
date
|
|
LastBPOAsIs
|
Double
|
Last
BPO as is
value
|
|
LastBPOAsRep
|
Double
|
Last
BPO repaired
value
|
|
LastBPOCTC
|
Double
|
Last
BPO cost to cure/repair
amount
|
|
LastBPORecDt
|
Date/Time
|
Last
BPO received
date
|
|
LastListPxReduc
|
Date/Time
|
Date
of last list price
reduction
|
|
MarketStrategy
|
Text
|
Current
market strategy,
repaired/as is
|
|
MinSalesPrice
|
Double
|
Authorized
minimum sales
price
|
|
MktComments
|
Text
|
Marketing
comments in regard to
subject property
|
|
NetSalePx
|
Double
|
Net
Sales
Price
|
|
OccupancyStatus
|
Text
|
Occupancy
status
|
|
OffAccDt
|
Date/Time
|
Date
offer was
accepted
|
|
OfferAcceptedAmt
|
Double
|
Amount
of offer
accepted/gross
|
|
OfferAcceptedAmtNet
|
Double
|
Amount
of offer
accepted/net
|
|
OrigListDt
|
Date/Time
|
Original
listing
date
|
|
OrigListPx
|
Double
|
Original
listing
price
|
|
RedemptDt
|
Date/Time
|
Date
redemption
occurred
|
|
RepairStatus
|
Text
|
Stage/status
of repairs
authorized
|
|
SalePx
|
Double
|
Final
gross sales
price
|
|
REO
Status
|
Text
|
Status
of
REO
|
|
UPB
at FC
Sale
|
Double
|
UPB
on date of foreclosure
sale
|
|
VacateDt
|
Date/Time
|
Date
property was
vacated
|
|
AnticipatedMarketTime
|
Double
|
Estimated
number of days to market
before sale
|
|
BrokerLastName
|
Text
|
List
broker last
name
|
|
BrokerFirstName
|
Text
|
List
broker first
name
|
|
StaticData
|
|
|
|
OldLoanNo
|
Double
|
Prior
servicer loan
number
|
|
InvLnNo
|
Double
|
Investor
loan
number
|
|
Lname
|
Text
|
Last
name of primary
borrower
|
|
Fname
|
Text
|
First
name of primary
borrower
|
|
Addr
|
Text
|
Property
street
address
|
|
City
|
Text
|
Property
city
|
|
ST
|
Text
|
Property
state
|
|
Zip
|
Text
|
Property
zip
code
|
|
County
|
Text
|
Property
County
|
|
PropType
|
Text
|
Mortgaged
property
type
|
|
NoUnits
|
Long
Integer
|
Multi
Unit - number of
units
|
|
Purp
|
Text
|
Purpose
of subject
purchase
|
|
NoteType
|
Text
|
Loan
Note
type
|
|
LienPos
|
Text
|
Lien
position
|
|
OrigBal
|
Currency
|
Original
principal
balance
|
|
OrigLTV
|
Double
|
Original
loan to value
ratio
|
|
OrigAppr
|
Currency
|
Original
appraisal
value
|
|
OrigApprDate
|
Date/Time
|
Original
appraisal
date
|
|
1stPayDt
|
Date/Time
|
First
payment due
date
|
|
MatDt
|
Date/Time
|
Loan
maturity
date
|
|
OrigDt
|
Date/Time
|
Loan
origination
date
|
|
OrigTerm
|
Long
Integer
|
Original
loan
term/months
|
|
SalesPrc
|
Currency
|
Subject
sale
price
|
|
Orig
Occup
|
Text
|
Original
Occupancy
Status
|
|
OwnType
|
Text
|
Owner
Type
|
|
PMIIns
|
Text
|
PMI
indicator
|
|
PMICertif
|
Text
|
PMI
certificate
number
|
|
PMIPct
|
Double
|
PMI
coverage
percentage
|
|
ModFlag
|
Text
|
Modification
indicator
|
|
ModDate
|
Date/Time
|
Modification
date
|
|
AssumableIndicator
|
Text
|
Assumable
loan
indicator
|
|
AssumedDate
|
Date/Time
|
Assumption
date
|
|
PPPenalty
|
Text
|
Prepayment
penalty
indicator
|
|
PPP
Expiration
Date
|
Date/Time
|
Prepayment
penalty termination
date
|
|
PPP
Estimated
Amount
|
Currency
|
Estimated
prepayment penalty
amount
|
|
AdjRtCd
|
Text
|
Adjustable
Rate
Code
|
|
BallCd
|
Text
|
Balloon
loan
indicator
|
|
NegAmCd
|
Text
|
Negative
amortization
code
|
|
BKData
|
|
|
|
BK
Status
|
Text
|
Bankruptcy
status
|
|
CaseNo
|
Text
|
Bankruptcy
case
number
|
|
FilingDt
|
Date/Time
|
Bankruptcy
filing
date
|
|
Chapter
|
Text
|
Bankruptcy
chapter
filed
|
|
PlanPayment
|
Double
|
Plan
payment
amount
|
|
MFRFiledDt
|
Date/Time
|
Motion
for relief filed
date
|
|
MFRHearingDt
|
Date/Time
|
Motion
for relief hearing
date
|
|
GrantedDt
|
Date/Time
|
Date
motion for relief was
granted
|
|
DischargeDt
|
Date/Time
|
Date
Bankruptcy was
discharged
|
|
DismissalDt
|
Date/Time
|
Date
Bankruptcy was
dismissed
|
|
PostPetDueDt
|
Date/Time
|
Post
petition current due
date
|
|
PostPet1stDueDt
|
Date/Time
|
First
post petition payment date
due
|
|
PlanDueDt
|
Date/Time
|
Pre
petiton due
date
|
|
PlanStartDt
|
Date/Time
|
Confirmed
plan start
date
|
|
PlanEndDt
|
Date/Time
|
Plan
completed
date
|
|
Cash
|
|
|
|
ServicerID
|
Text
|
Master
servicer
ID
|
|
MMYY_Tot_Remit
|
Currency
|
Total
cash remitted for
loan
|
|
MMYY_Prin
|
Currency
|
principal
remitted
|
|
MMYY_Int
|
Currency
|
interest
remitted
|
|
MMYY_RecovAdv
|
Currency
|
advances
recovered
remitted
|
|
MMYY_RecovEsc
|
Currency
|
escrow
advances recovered
remitted
|
|
MMYY_Tot_Coll
|
Currency
|
total
collections on
loan
|
|
MMYY_SuspColl
|
Currency
|
suspense
collected
|
|
MMYY_OtherColl
|
Currency
|
other
collections
|
|
CorpAdvance
|
|
|
|
Amount
|
Currency
|
Amount
of corporate advance
paid
|
|
Date
|
Date/Time
|
Date
corporate advance was
paid
|
|
Type
|
Text
|
Corporate
advance type
code
|
|
Cost
Description
|
Text
|
Description
of corporate advance
paid
|
|
ServicerFileDate
|
Text
|
Date
of servicer
file
|
|
Liquidation
|
|
|
|
Liquidation
Date
|
Date/Time
|
Date
loan
liquidated
|
|
Liquidation
Proceeds
|
Currency
|
Liquidation
amount
|
|
Liquidation
Type
|
Text
|
Liquidation
type
|
EXHIBIT
9
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated ____________, 200__,
(“Agreement”) among Citigroup Global Markets Realty Corp.
(“Assignor”), ________________________ (“Assignee”) and
_____________ (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser, in,
to
and under (a) those certain Mortgage Loans listed as being originated by the
Company on the schedule (the “Mortgage Loan Schedule”) attached hereto as
Exhibit A (the “Mortgage Loans”) and (b) except as described below, that
certain Master Mortgage Loan Purchase and Servicing Agreement dated as of
____________, 20__, as amended (the “Purchase Agreement”), between the
Assignor, as purchaser (the “Purchaser”), and the Company, as seller,
solely insofar as the Purchase Agreement relates to the Mortgage Loans and
(y)
other than as provided below with respect to the enforcement of representations
and warranties, none of the obligations of the Assignor under the Purchase
Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to the servicing rights or any mortgage loans subject
to
the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement.
The
Assignor and the Assignee each hereby retain the right to enforce the
representations and warranties set forth in Subsection 7.01 and Subsection
7.02
with respect to the Company and the Mortgage Loans against the Company;
provided, however, that in no event shall the Company be required to pay the
Repurchase Price with respect to any Mortgage Loan more than once in connection
with the repurchase of a Mortgage Loan pursuant to Subsection 7.03, 7.04 or
7.05
of the Purchase Agreement. In addition, the right to require the
Company to repurchase a Mortgage Loan shall be exercised solely the Assignee,
its successors and assigns.
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 Agreement to
______________________________ (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of _______________, 200__ (the
“Pooling Agreement”), among the Assignee, the Assignor,
____________________, as trustee (including its successors in interest and
any
successor trustees under the Pooling Agreement, the “Trustee”),
_________________________, as 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 Trustee 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 Trustee 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][Trustee.]
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee [and the Trust]
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the 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 the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the 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;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
4. 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 as if such
representations and warranties were made on the date hereof except that the
representation and warranty set forth in Subsection 7.02(i) shall, for purposes
of this Agreement, relate to the Mortgage Loan Schedule attached
hereto.
[Additional
Representations and Warranties Necessary for Securitization]
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee [and the Trust (including the Trustee 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 Sections 3
and 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
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced[, with the prior written consent of the
Trustee].
8. This
Agreement shall inure to the benefit of [(i)] the successors and assigns of
the
parties hereto [and (ii) the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf)]. 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.
9. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee [and by Assignee to the Trust]
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
11. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in this Agreement shall have the meanings given to such terms in the
Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
|
|
|
By:
Name:
Its:
|
|
|
[SELLER]
|
|
|
By:
Name:
Its:
|
EXHIBIT
10
FORM
OF
INDEMNIFICATION AGREEMENT
Indemnification
Agreement dated as of _________ __, 200__ (the “Agreement”) between
_____________ (the “Company”) and _____________________ (the
“Depositor”).
Reference
is made to the issuance of ____________________, Series ________, Asset-Backed
Certificates (the “Certificates”), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ (the “Pooling and Servicing Agreement”),
among the Depositor as depositor, _________________ as master servicer and
_____________________ as trustee (the “Trustee”). The Depositor will
sell certain of the Certificates to _______________ (the “Underwriter”) for
offer and sale pursuant to the terms of an Underwriting Agreement, dated
______________, ____ (the “Underwriting Agreement”), between the Depositor and
the Underwriter. Further reference is made to the Master Mortgage
Loan Purchase and Servicing Agreement, (the “Purchase Agreement”) dated as of
____________, 20__ between the Company and Citigroup Global Markets Realty
Corp.
(“CGMRC”) which agreement was assigned to the Depositor pursuant to the terms of
the Assignment as Recognition Agreement dated as of ______ among the Company,
___________ and CGMRC. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
Reference
is also made to the information provided by ____________ contained in the
Prospectus Supplement, including any supplement or amendment thereto, under
the
caption, “The Originators—______________” and “__________” (the “Company
Information”).
1. Pursuant
to Section 12 of the Purchase Agreement:
(a) Company
(also referred to herein as the “Indemnifying Party”) agrees to indemnify and
hold harmless the Underwriter, the Depositor and each of their directors and
officers and affiliates and each person, if any, who controls the Underwriter
or the Depositor within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (the “Indemnified Party”), against any and
all actual losses, claims, expenses, damages or liabilities to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon (x) any untrue statement or alleged untrue statement of any material fact
contained in the Company Information or omission or alleged omission to state
therein, a material fact required to be stated therein or necessary to make
the
statements made therein, in light of the circumstances under which such
statements were made, not misleading (in each case, regardless of whether a
final judgment has been entered by a finder of fact) or (y) any material
misstatement or omission or alleged material misstatement or omission contained
in the Prospectus Supplement regarding information or statistics therein
regarding the Mortgage Loans based on information correctly derived by the
Depositor or its affiliates and included in the Prospectus Supplement from
information actually provided to the Depositor or its affiliates by Company;
and
will reimburse any such reasonable legal or other expenses reasonably incurred
by the Depositor or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which Company may otherwise have.
(b) Promptly
after receipt by the Indemnified Party under this Section 1 of notice of the
commencement of any action described therein, the Indemnified Party will, if
a
claim in respect thereof is to be made against the Indemnifying Party under
this
Section 1, notify the Indemnifying Party of the commencement thereof, but the
omission so to notify the Indemnifying Party will not relieve the Indemnifying
Party from any liability that it may have to the Indemnified Party (a) under
this Agreement except to the extent that the omission to notify the Indemnifying
Party with respect to this Agreement materially adversely affects the
Indemnifying Party’s ability to perform under this Agreement or (b)
otherwise than under this Agreement. In case any such action is brought against
the Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and, to the extent that it may wish to do so, jointly with any other
Indemnifying Party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to the Indemnified Party (who shall not, except
with the consent of the Indemnified Party, be counsel to the Indemnifying
Party), and, after notice from the Indemnifying Party to the Indemnified Party
under this Section 1, the Indemnifying Party shall not be liable for any legal
or other expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof other than reasonable costs of
investigation.
The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the Indemnified Party unless: (i) the
employment thereof has been specifically authorized by the Indemnifying Party
in
writing; (ii) the Indemnified Party shall have been advised by such counsel
that
there may be one or more legal defenses available to it which are different
from
or additional to those available to the Indemnifying Party and in the reasonable
judgment of such counsel it is advisable for the Indemnified Party to employ
separate counsel; (iii) a conflict or potential conflict exists (based on advice
of counsel to the Indemnified Party) between the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party will not have the
right
to direct the defense of such action on behalf of the Indemnified Party) or
(iv)
the Indemnifying Party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the Indemnified Party, in which case,
if the Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of the Indemnified Party, it being understood, however, the
Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for the Indemnified Party, which firm
shall be designated in writing by the Depositor or any of the Depositor’s
directors, officers or controlling persons.
The
Indemnified Party, as a condition of the indemnity agreements contained in
Section 1(a) and Section 1(b), shall use its best efforts to cooperate with
the
Indemnifying Party in the defense of any such action or claim. The Indemnifying
Party shall not be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but
if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the Indemnifying Party agrees to indemnify and
hold harmless the Indemnified Party from and against any loss or liability
(to
the extent set forth in Section 1(a) or Section 1(b) as applicable) by reason
of
such settlement or judgment.
2. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by facsimile and confirmed
by
similar mailed writing as follows: (i) if to Company: ________________, [__],
Attention: [__], and (ii) if to the Depositor:
____________________________________, Facsimile (___) ___-____, Attention:
Legal. Any party hereto may alter the address to which communications
or copies are to be sent by giving notice of such change of address in
conformity with the provisions of this Section for the giving of
notice.
3. This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute one instrument.
4. This
Agreement shall be construed in accordance with the laws of the State of New
York.
IN
WITNESS WHEREOF, the Depositor and Company have caused their names to be signed
by their respective officers thereunto duly authorized as of the date first
above written.
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_______________________________
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|
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By:____________________________
Name:
Title:
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_______________________________
By:_____________________________
Name:
Title
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EXHIBIT
11
FORM
OF
ANNUAL CERTIFICATION
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Re:
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The
[
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]
agreement dated as of [
|
,
200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
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I,
_____________________________________, the _______________________ of [NAME
OF
SELLER] (the “Company”) and, in such capacity, the officer in charge of the
Company’s responsibility on Exhibit 12 to the Agreement. I hereby
certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
1. I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all other data,
servicing reports, officer’s certificates and information relating to the
performance of the Company under the terms of the Agreement and the servicing
of
the Mortgage Loans by the Company during 200[ ] that were delivered to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant
to
the Agreement (collectively, the “Company Servicing Information”);
2. Based
on
my knowledge, the reports and information comprising the Company Servicing
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements were made,
not misleading as of the period covered by, or the date of such reports or
information or the date of this certification;
3. Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
4. I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
5. The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. The
Servicing Assessment and the Attestation Report cover all items of the servicing
criteria identified on Exhibit 12 to the Agreement as applicable to the
Company. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such
reports. The
following material instances of
noncompliance identified in the Servicing Assessment and the Attestation Report
relate to the performance or obligations of the Company under the Agreement:
____________ (if none, state “None.”)
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Date: _________________________
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By: _______________________________
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Name:
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|
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Title:
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EXHIBIT
12
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
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SERVICING
CRITERIA
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APPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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General
Servicing Considerations
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||
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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X
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1122(d)(1)(ii)
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If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
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X
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
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X
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1122(d)(1)(iv)
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A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
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X
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Cash
Collection and Administration
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||
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1122(d)(2)(i)
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Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
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X
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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X
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1122(d)(2)(iii)
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Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
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X
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1122(d)(2)(iv)
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The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
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X
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1122(d)(2)(v)
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Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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X
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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X
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1122(d)(2)(vii)
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Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
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X
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Investor
Remittances and Reporting
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||
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1122(d)(3)(i)
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Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
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X
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1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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X
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1122(d)(3)(iii)
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Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
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X
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1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
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X
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Pool
Asset Administration
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||
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1122(d)(4)(i)
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Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
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X
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1122(d)(4)(ii)
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Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
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X
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1122(d)(4)(iii)
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Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
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X
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1122(d)(4)(iv)
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Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
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X
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1122(d)(4)(v)
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The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
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X
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1122(d)(4)(vi)
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Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
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X
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1122(d)(4)(vii)
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Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
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X
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1122(d)(4)(viii)
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Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
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X
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
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X
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1122(d)(4)(x)
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Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
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X
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1122(d)(4)(xi)
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Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
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1122(d)(4)(xii)
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Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
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X
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1122(d)(4)(xiii)
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Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
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X
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
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X
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1122(d)(4)(xv)
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Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
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X
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